Choosing a Legal Guardian for Your Child

Establishing a legal guardian for your minor children is an important part of your estate planning that should be done as soon as possible after your child is born. If your child has special needs, you will want to name a legal guardian for them in your will even if they are not minors, since it is likely that these children will require care for the remainder of their lives.

If you do not include a guardian or guardians for your minor child in your will or estate planning documents, the court can decide who should care for the child. While courts can choose relatives of the child, they are not required to choose a relative, and may place the child in foster care. 

By naming a guardian in your will, you ensure that your child is cared for by someone they know, and you approve of. You will also prevent family members from going to court to fight over custody of your children in the event of your death. Legally documenting your choice will avoid the time, expense, and emotional toll a court battle or foster placement could cause your child.

Generally, if only one parent dies, the other parent has a legal right to custody of the child, even if that individual has never been involved in the child’s life. If you have specific reasons why you do not wish for your child’s other parent to obtain custody of the child in the event of your death, it is critically important for you to plan for an alternative. 

You can choose anyone to be the legal guardian for your minor child. If your child does not have any other living relatives, or if you do not feel that the child’s relatives would be the most appropriate guardians for your child, you are free to choose a family friend or other non-relative.

It is wise to speak with the individuals you are considering as potential guardians for your minor child to determine if they are willing to take on this responsibility if necessary, and to ensure that they will be prepared if the situation arises. You should also consider naming an alternative guardian if the first individual named is no longer living or is unable to serve as legal guardian. 

Some parents name two people as co-guardians – for example, naming both individuals in a married couple as co-guardians of the child will allow both individuals to legally make decisions for the child.
If you have more than one minor child, your will should specify a legal guardian for each child and should also note if you would prefer that all of your children stay together with one guardian. 

When choosing who to name as your child’s guardian, think about both the needs of your child and the needs of the guardian.

You may also decide that the children should be placed with different guardians according to the needs of each individual child, or to avoid placing unnecessary burden on one guardian to care for all of your children, especially if the guardian already has children of their own.

Consider the parenting style and environment you would want your child to grow up in, including the values and religion of the guardian and their household. The guardian’s financial stability, age, health and ability to physically carry out the duties and responsibilities of raising your child are also important factors.

Where does the guardian live? Your sibling may not be the best choice for guardian of your minor child if he or she lives far away and you want your child to be able to remain in their home town or attend the same school they attend now. Some parents also leave a letter of explanation for the court that describes the reasons the parent believes the chosen guardian is appropriate for the child to eliminate any questions the court may have about the choice.

If you need help with the best way to plan and provide for your minor or disabled child in your estate plan, or if you have other questions about wills and estate planning, use our site to connect with a local estate planning lawyer.