Can I Name a Guardian Other Than My Child’s Other Parent in my Will?

When two parents are married, they almost always handle their estate planning together. This includes making decisions together about guardianship designations for minor children in the event that both parents pass away. But if parents are not together, things are not so simple.

First, it’s important to understand that if either parent passes away, the default would be for the other parent to assume full legal and physical custody. Guardianship designations in a will would typically only come into play upon the death of the second parent. Ideally, co-parents can put aside whatever differences they have to discuss guardianship designations and come to an agreement about who would raise their child if something happens to them both. 

But what if you have legitimate concerns about the other parent’s fitness as a parent? As I’ve already mentioned, the default is for the other parent to assume guardianship. Courts take parental rights very seriously and do not deprive natural parents of those rights except in extreme situations. Examples of such extreme situations might include substance abuse or mental illness that present serious safety concerns. If these kinds of concerns exist in your situation, name someone else as your preferred guardian in your estate planning documents. Also, consider writing a detailed letter for the court explaining your concerns, to be kept alongside your will. 

Additionally, if you have a situation that is so extreme that you would not want your child raised by the other parent, it would be wise to speak with a family law attorney about seeking sole legal and primary physical custody of your child. If the other parent has been deprived of custody during your lifetime, this would be persuasive evidence in favor of depriving them of guardianship after your death.

At the end of the day, it’s important that you consider all of your options and make appropriate provisions for your child’s care should something happen to you. As an attorney who has experience in both estate planning and family law, including many cases of parental unfitness, I am happy to guide parents through this kind of planning. Please reach out to make an appointment if you’d like to discuss your situation.