What is a legal guardian, and why do I need one for my child?
A legal guardian is an adult designated to care for your child in the event that you and his other parent both die before he reaches adulthood. While the thought of someone else caring for your child might make you shudder, you need to choose a guardian so the courts don't do it for you. If you think that your mother or sister will automatically receive custody of your child if you die, you're mistaken. Unless you specifically state in your will that you want your mother, sister, or someone else to be your child's guardian, anyone can step forward and ask for the job, and a judge will decide who wins custody.
If you and your spouse or partner have separate wills, you should both name the same person as the guardian of your child to avoid conflicts. Many parents also name an alternate guardian in case their first choice is unwilling or unable to accept the responsibility.
How do I choose the right person?
Deciding who will raise your child in your absence is one of the toughest decisions you'll face as a parent. Many parents say the first step is to admit that no one is good enough. Once you get past the idea that the best parent for your child is you and no one else can compare, you can move on to choosing the next best person. Make a list of all the possible candidates and then sit down with your partner and talk over the pros and cons of each one. Here are a few things to think about while you're going through the process:
• Whose parenting style, values, and religious beliefs most closely match your own?
• Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically, etc.?
• Who does your child feel comfortable with already?
• Will your child have to move far away, and will this pose any problems?
• Does the person you're considering have other children? If so, would your child fit in or get lost in the shuffle?
• Does the person have enough time and energy to devote to your child?
Once you narrow your list down to a few key people, talk to them about how they'd feel if you named them guardian of your child. The conversations may reveal feelings and attitudes that will help you make your final decision. Or you may find out that one of your choices isn't willing to take on the responsibility.
Guardianship can be flexible over time. If you really want your parents to be your child's guardian now but fear that they'll grow too old to handle the job, you can specify that they be designated guardians for a set period of time (until your child is 10, for example), after which responsibility passes to a sibling or friend. A switch like this can be difficult on your child, though, so carefully consider the ramifications.
The person that you select as guardian will have a huge task ahead. She'll have to meet your child's emotional and physical needs and raise your child to be a competent and fulfilled adult. Take the time to document your hopes and expectations for raising your child in a letter and attach it to your will. Consider things like what kind of education you have in mind and what religious beliefs and values you think are important. Reread the letter every year or two and update it if necessary.
For more advice from other parents on how to choose the right guardian, see our Parenting Dilemma .
Can I name a different guardian for each of my children?
Most people want their children to stay together, so they choose the same guardian for all, but if you want to, you can name separate guardians for each of your children. You might consider this option if your children are far apart in age or if each one has a special attachment to a different person. For example, your daughter may be particularly close to her grandparents, while your son feels very attached to his uncle. This kind of arrangement can also work if you have children from different marriages who have their own sets of relatives and friends. The most important thing is to pick a guardian that's best able to meet each child's needs.
Should I name a different person to oversee the property I leave to my child?
The choice is yours. Some parents name one person to be their child's personal guardian and to oversee their child's finances (a property guardian). This can simplify things and give the guardian access to money when it's needed without having to check in with someone else.
Other families separate the responsibilities. "We know that the best home for our children would be with my sister," says Patti, a mother of two from Denver, "But we chose my father to manage the property because he has a real handle on finances, and I trust him to make solid decisions. Besides, my sister has kids of her own and doesn't have the time to really think about it."
Mary in Seattle chose to name a life-long friend with kids as personal guardian for her child, but chose her own parents as the property managers. "I wanted my parents to have an active role in my kids' upbringing. My friend lives in another state, and I knew the kids wouldn't see their grandparents as much. So, this way, my parents will get regular updates and participate in some of the major decisions."
Consider how well your personal guardian and property guardian get along. If they have a good rapport, the separation of roles could work well. But problems are bound to arise, so choose two people who can work on solutions together.
What if I'm not married to my partner; what will happen to our child if I die?
There are three circumstances to consider here: You and your partner are the biological parents of the child; you are the biological parent but your partner isn't; or neither of you is a biological parent.
If you're both the biological parents, then you both have the presumptive right to be the guardian of your child in case the other partner passes away. In this case, a judge would automatically grant custody to a biological parent. But the other parent could step forward and say he or she is unable or unwilling to care for the child — one more reason to name a guardian in your will.
If one partner is the biological parent and the other is not, the non-biological parent has no automatic right to be guardian of the child if he or she has not legally adopted the child. In this case, if the non-biological parent is not named in the will as the guardian of the child, the judge will not automatically grant guardianship to that person.
If both partners are not the biological parents of the child but both are the adoptive parents, then they both have the same presumptive rights as biological parents. That is, the judge will automatically grant custody to an adoptive parent if the other partner dies.
What if I don't want my child's other parent to be his guardian when I die?
If you're separated or divorced you may feel strongly that your child's other parent shouldn't have custody if something should happen to you. The law is not on your side in this regard. A judge will almost always grant custody to a biological parent unless the surviving parent has legally abandoned the child by not providing for or visiting the child for an extended period or is clearly unfit as a parent. In most cases it's difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol use, mental illness, or a history of child abuse.
That being said, you could explain your case in a letter and attach it to your will. The judge will take all information into account when he or she makes a guardianship decision.
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