If you have a child, you already know the importance of having a will in place naming a guardian for him in the event of your untimely death. This can be a difficult task even when you and the child's other parent are married, but when a divorce or separation has occurred, this task can seem nearly impossible. If you are facing the difficult decision of guardianship after divorce or separation, here are some tips to help you proceed.
When One Parent Survives
If you die and the child's other parent is fit to assume full custody, this will always be the preferred scenario. If you feel comfortable with your ex caring for your child, you will indicate the surviving parent as the guardian in your personal will.
When Both Parents Die
You will also need to select a guardian for your child in the unlikely event that both you and your ex die before the child reaches 18 years of age. If at all possible, the two of you should work together to choose this guardian and name that person in both of your wills. Even if your relationship is strained, you and your ex need to make it a priority to sit down together and choose a guardian as soon as possible.
Your estate lawyer can help you and your ex through this process by providing mediation. The three of you should choose a time to meet, and both you and your ex need to bring a list of several people who you feel comfortable naming as guardian(s). At the meeting, you'll need to discuss the physical, emotional, and financial state of all potential guardians and decide on the one(s) that will be best for your child.
Agreeing on a guardian can be very difficult, especially if you and your ex have animosity toward each other's extended family members. It may take several meetings for the two of you to agree. You should also take the time to speak with your top candidates and see how they feel about the possibility of becoming your child's guardian. This will often help make the decision much easier.
When You Can't Agree
If you and your ex are unable to decide on a guardian, the judge will appoint one based on what he feels is in the child's best interest. If no one offers to take your child, he will be placed in foster care. To avoid this, name your choice for guardian in your personal will (after speaking with them and getting their permission) and write a letter explaining why you think that person should become your child's guardian. Your ex may go through this same process and name a different individual, so ultimately it will be up to the judge to decide.
When One Parent is Unfit
Judges will not appoint guardianship to a parent who is clearly unfit to accept responsibility for a child. This includes the following situations:
- The parent has not been involved in the child's life for some time
- The parent has substance abuse problems
- The parent is homeless
- The parent is a registered sex offender
- The parent has a mental illness that affects his or her parenting ability
- The parent is abusive
Sometimes a parent's inability to assume guardianship will not be clear to a judge. If you are uncomfortable with your ex obtaining guardianship, you'll need to write a letter explaining why you feel this way. Your estate lawyer will include it in your personal will and present it to the judge if you die before your child reaches adulthood. If possible, you should gather any evidence supporting the claims in your letter to help sway the judge's decision. This includes photographs, video and audio recordings, police reports, etc.
When you are divorced or separated from your child's other parent, choosing a guardian can seem like an impossible task. However, it is extremely important that you do it. Use these tips and the advice of your estates lawyer to help you make this important decision. Once it's done, you'll feel a huge sense of relief knowing who will care for your child if you pass away.