Minor Children Guardianship: All You Need to Know
The legal guardianship of minor children is a common and often complicated topic in estate planning. In my decades of probate and estate law practice, I have often encountered cases that involve issues with minor children's guardianship. And, the difficulty and solutions to these issues vary on a case-to-case basis. I have previously discussed what happens to minor children when their parents die. Now, I want to provide a closer look into the topic and discuss the factors to consider when estate planning with minor children in mind.
Estate Planning with Minor Children
The primary purpose of estate planning is to ensure all the things you own or possess will be taken care of when you die. And, the estate planning process becomes complicated when your death also involves leaving behind a minor child or children.
Why is estate planning complicated when minors are involved? Because minor children are not properties that you can just bequeath to a beneficiary. The legal guardianship of an underaged person involves duties such as:
Providing basic needs such as food, clothing, shelter, health care, education, etc.
Assuming the role of a parent for physical, emotional, and mental support
Making critical life decisions until the child is capable of making sound judgment
These duties are not to be taken lightly because they have the greatest impact on a child’s life. What a child becomes as an adult is greatly influenced by their guardian’s role in their upbringing.
Furthermore, today’s modern, blended families often complicate the process, as choosing a guardian lands between both estate planning and family law. So, information on your family’s specific scenario can be hard to sort out. As a parent, it is helpful to understand how to put your wishes in writing and what issues could prevent your guardianship choice from being honored.
Minor Children Guardianship Factors
When deciding who gets guardianship of minors, the court has to consider several factors:
Presence of a Surviving Parent
To answer the question ‘If I die, who gets my child?’, the court first considers the presence of the other parent. In general, the court awards minor guardianship to the surviving biological parent. But there are exceptions, as you can see below.
Adoption of the Minor
If a minor is adopted, the adoptive parents have guardianship even when one or both biological parents die. For example, if a mother dies does the father automatically get custody? Yes, but if the couple is divorced and the child is adopted by a stepfather, the guardianship goes to the surviving adoptive parent, in this case, the stepfather.
Fitness to be a Parent
Before the court appoints guardianship to the surviving adoptive or biological parent, it considers whether they are fit to act as the minor’s parent. An appointed guardian should have the financial, physical, and mental capabilities to perform their critical role. If the adoptive or biological parents fail to meet these fitness requirements, the court can consider other individuals connected to the child by blood or marriage. If there are no qualified individuals, the court can assign the minor children to foster care.
Parent’s Last Wishes
A parent’s last wish is also taken into consideration when awarding guardianship to minors. The court can appoint a guardian based on the last will and testament. However, the court does not follow the parent’s final wishes blindly. It must first ensure that the guardian identified on the parent‘s final wishes fits the role.
There are also cases when the wills of the parents conflict. The biological parents’ last wishes can identify different guardians for their child. In this case, the wishes of the parent with the more recent death would bear the most weight in the court’s decision. If the parents died at the same time such as in an accident, the court decides based on the fitness of the candidates to raise the minor.
Child’s Preference
Older children can choose who they want to be their personal guardians. Different states have different age limits for children who can make sound decisions regarding this. And even with these age limits, the court’s decision can vary upon evaluating the preference of the child.
Other Candidates
In some cases, the adoptive or biological parents are unavailable. This can be due to death, abandonment, termination of parental rights, child or drug abuse, disability, etc. If this is the case, the court looks into other candidates for guardianship.
If there are no wills or any record of a parent’s last wish, or if a child is incapable of choosing their guardian, the court considers other candidates. The court can look into the closest relatives. It can also consider the current guardians to maintain consistency in a child’s life.
Secure Your Children’s Future Today
As a parent, naming a guardian for your children is an essential part of estate planning, as it safeguards their physical, emotional, and financial needs. Don't leave their future to chance or the complexities of the legal system. Take action now to express your wishes and provide clarity for your loved ones.
Name a Guardian for Your Children with our Free Will Template
Protecting the well-being of your minor children is a responsibility that should not be overlooked. By downloading our Free Estate Plan: Last Will and Testament Template, you can take a crucial step towards ensuring their future is in capable hands. Download our free template and gain peace of mind knowing that you have taken the necessary steps to protect your children's best interests.
Begin Your Comprehensive Estate Plan with a Free Consultation
Knowing the factors above helps you better prepare an estate plan that includes minor children. Understanding these factors is especially valuable when estate planning for blended families. With thousands of completed estate plans for individuals and families of all shapes and sizes, we are experienced in preparing estate plans that secure a brighter tomorrow for your precious children. If you have further questions or if your situation is not included above, please reach out to us. We will be more than happy to provide the much-needed answers. Better yet, schedule a free consultation with our estate planning experts today!