Explaining Your Choice for Personal Guardian

Nolo’s Online Will gives you the option to include a brief statement in your will that explains your choice for personal guardian. Leaving a written explanation of why you made a particular choice for a personal guardian may be a good idea if you think a judge may have reason to question your decision, or if you want to give a judge more information about your situation. Explanations may be especially important when the other parent may not make a good guardian, or when the best choice for guardian may not be obvious. Consider these common situations:

  • “I have custody of my three children. I don’t want my ex-husband, who I believe is emotionally destructive, to get custody of our children if I die. Can I choose a guardian to serve instead of him?”
  • “I have legal custody of my daughter and I’ve remarried. My present wife is a much better mother to my daughter than my ex-wife, who never cared for her properly. What can I do to make sure my present wife gets custody if I die?”
  • “I live with a man who’s been a good parent to my children for six years. My father doesn’t like the fact that we aren’t married and may well try to get custody of the kids if I die. What can I do to see that my partner gets custody?”

There are no definitive answers to these questions. If you die while your children are young, a judge will assess your family situation and make a determination about what is best for your kids. What you can do is name the person you believe is the best choice and also leave a note in your will that explains your decision and provides the judge with information that may help confirm your choice.

If You Don’t Want the Other Parent to Have Custody

You may have strong ideas about why your child’s other parent should not have custody of your minor children. In this case, you can and should name someone else as guardian and include an explanation of your decision in your will. However, even if you do, the judge will likely grant custody to the other parent, unless that parent:

  • has legally abandoned the child by not providing for or visiting the child for an extended period
  • is clearly unfit as a parent, or
  • declines custody and a better choice is available.

EXAMPLE: Susan and Fred, an unmarried couple, have two minor children. Although Susan loves Fred, she does not think he is capable of raising the children on his own. She uses Nolo's Online Will to name her mother, Elinor, as guardian. If Susan dies, Fred, as the children’s other parent, will be given first priority as personal guardian over Elinor despite Susan’s will, assuming the court finds he is willing and able to care for the children. However, if the court finds that Fred should not be personal guardian, Elinor would get the nod, assuming she is fit.

It is usually difficult to prove that a parent is unfit, absent serious and obvious problems, such as chronic drug or alcohol abuse, mental illness or a history of child abuse. The fact that you do not like or respect the other parent is never enough, by itself, for a court to deny custody to him or her.

If you honestly believe the other parent is incapable of caring for your children properly—or simply will not assume the responsibility—you should reinforce that belief by providing information that supports your opinion and by explaining why the person you named would be a better choice.

When Your Partner is Not a Legal Parent to Your Children

If you coparent your children with a partner who is not legally your children’s other parent, you will likely want to nominate that person to be your children’s personal guardian. If so, also consider leaving an explanation about your choice so that a judge would have all of the information needed to fully grasp the importance of the relationship between your children and your partner.