If you have young children, you’ve probably thought about who would raise them if both you and your spouse were to die. It’s not an easy thing to consider. However, you can make plans now that will put your fears to rest, knowing that your children will be nurtured and cared for.
You can use your will to name the person you want to be the guardian of your children. The judge will appoint the person you nominated in your will as guardian, unless it is not in the best interests of the children for some reason. If you do not name a guardian in your will, anyone who is interested can request to be appointed. The judge then must decide, without your opinion.
Legally, you may name co-guardians, but keep in mind that co-guardians could later go separate ways. Here are some factors to consider when selecting a guardian or co-guardians:
- Is the prospective guardian old enough? He or she must be an adult, 18 years or older.
- Does your choice have a genuine concern for your children’s welfare?
- Is your choice physically able to handle the rigors of child rearing?
- Does he or she have the time? The resources?
- Does he or she have children close in age to that of your children? Is this a benefit?
- Does the guardian share your moral beliefs?
- Would your children have to move away from other family members?
If you’re having a hard time selecting a guardian, talk with the people you’re considering. They may not be willing or able to accept the responsibility. Their feelings about acting as guardian may help you decide.
When you and your child’s other parent make your wills, you should name the same person as guardian. Otherwise, in the event of both your deaths, the court would be faced with wishes that conflict, and would have to make the choice. If you don’t agree on one person, candid discussions with your potential guardians may help you reach an agreement.
Most people want their children to stay together. However, you may have good reasons for naming different guardians for different children. In all cases, you should keep the best interests of your children at heart. In most cases a judge would grant custody to a non-parent only if the surviving parent had abandoned the child or was found to be an unfit parent for some reason.
Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from keeping the children together to religious teachings. All of these wishes can be expressed in your will.
The decisions are difficult. In all cases, the best interests of the children come first. Selecting guardianship for your children is, in itself, a good reason to make a will and trust. Nothing gives greater peace of mind than knowing your children will be cared for if something were to happen to you.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna & Olmstead, PC, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (435) 628-1711 or jmckenna@barney-mckenna.com.