Naming a Guardian for Your Child: Problems and Solutions

Learn how to handle common difficulties in choosing a guardian.

If you find yourself really stuck on who to name as your children’s guardian, it might be because you’ve run into one of the problems listed below. If so, you’re probably not just being persnickety. Many parents put off making a will because they can’t decide on a guardian, but these tips might make that choice easier.

Your First Choice Is Older Than You Are

Solution: Forget about what could happen in ten years; just pick someone now and reevaluate in five years.
Focus on who could take care of your children in the next three to five years, knowing that you can change their guardian choices as the children, and their nominated guardians, grow older.

Your Family Won’t Like Your Choices

Solution: Explain your wishes in writing.
Your first loyalty is to your children, and you should always make the choices that you think will serve them best. You should also know that a court challenge to your choice of guardian is unlikely — and unlikely to succeed. A family member who wanted to overturn your choice of guardian would have to prove to a judge that there was a very good reason — say, a child abuse conviction — to set your choice aside.
Still, to prevent conflict as best you can, leave a written explanation of your choices. It can calm tension, and if necessary (again, this is unlikely), it could be used in court.

You Worry That Your Children Won’t Like Your Choices

Solution: Talk it over with them.
If you think your children won’t like your nominations for guardians, you might want to discuss it with them, especially if they’re already in their teens. Children 14 or older (12 in some states) may ask the court for a different guardian than the one nominated by their parents. The judge will take their wishes into account along with other factors.

Your First Choice Is Not a Good Money Manager

Solution: Name someone else to handle the finances.
If the person you want to raise your children is not good with finances, that is easily fixed. Just name someone else to manage your children’s money, and leave the guardian with only the job of making sure your child grows up well cared for and as happy as possible.

You Don’t Like Your First Choice’s Spouse

Solution: Name the individual, not the couple.
What if only one person in a couple is your choice for guardian? Just name the person you want — not both of them — as guardians. That way, if the couple divorces, your kids could stay with the person you feel closest to.

Your First Choice Lives Far Away

Solution: Name a temporary guardian in addition to a permanent one.
There’s no requirement that a guardian live where you live, but having an out-of-state guardian complicates things. A nonresident may have to post a bond (a sum of money or an insurance policy) as insurance that they will faithfully perform their duties as a guardian. In addition, an out-of-state guardian would have to get the guardianship proceeding moved to the state where they live. This means more hassle (and more lawyers’ fees).
If you want to name someone far away as a guardian, also nominate someone local who could serve as a temporary guardian. This person could take care of your children until your permanent guardians could get to them.

You Have Children From Previous Marriages

Solution: Focus on the needs of each child. You may end up naming different guardians for different children.
Blended families are common these days, making guardianship choices even more complicated. Some parents name different guardians for the children of different marriages. Others make a plan that would keep all the children together. Remember that guardianship doesn’t come into play at all if a child has a surviving parent, and that’s more likely when their parents are not living or traveling together.

You Don’t Want Your Ex-Spouse to Get Custody

Solution: Name a guardian and state in your will why your ex shouldn’t get custody.
If you’re divorced, you may be unhappy with the idea that should you die first, your ex-spouse would get custody of your children. That’s the reality, though, unless the parent is clearly unfit.
If you really don’t want your ex-spouse to take custody of your children, explain why in your will or in a letter. Include court records, police reports, or any other evidence of your ex’s unsuitability as a custodial parent. Give that letter to your first choice for a guardian, to be used as evidence of your wishes in the case of a court proceeding.

Next Steps

Choosing a guardian can be the hardest part of making a will. For more help selecting the ideal guardian as well as creating your will, figuring out whether you need a living trust, determining how much life insurance your family needs, and learning about powers of attorney, contact a local attorney for a no-cost consultation.

© 2009 Nolo