Guardianship for Minor Children
Every parent worries for their children’s safety, security and well-being. Since we’re addressing several legal options to protect your wishes, your family and assets, it is only appropriate that we address who should care for your minor children. Guardianship is yet another legal protection of your wishes. This legal document will name someone you feel “should” be appointed guardian for your minor children.
A minor child is defined as one that is under the age of eighteen years old. The court deems that a minor child is incapable of making decisions though the court might ask the minor child their viewpoint.
How Courts Determine Guardianship
If only one parent dies or becomes incapacitated, then the surviving parent is almost always appointed guardian but for some extraneous issue. If minor child’s parents have died, or incapable of serving, then the court will decide who should be the guardian. The court will use a “best interests” standard to determine guardianship of your child. A number of factors are used to determine the best interests of a child. While ever state differs, the guardianship “best interest” standard and similar parent custody standards include:
- The age and physical and mental condition of the child and the child’s developmental needs;
- The age and physical and mental condition of guardian;
- The relationship between guardian and the child, the guardian’s positive involvement and ability to assess and meet the child’s needs;
- The child’s needs including important relationships such as with brothers and sisters, grandparents, and other relatives;
- The role which guardian has played and will play in the upbringing and care of the child;
- Guardian’s willingness to support the child’s relationship with the other relatives, their willingness and ability to maintain a close relationship with the child, and their ability to cooperate in matters affecting the child;
- The child’s preference;
- Any history of abuse; and
- Any other factors the judge feels it is necessary to consider.
Voice Your Wishes
Though some states are strictly governed by court order guardianships, parents concerned about the court not taking their view into the situation can draft a guardianship document naming a guardian of the their [the parent’s] choosing.
Some states give parent’s choices for guardianship more weight than others. This document ensures the parent’s choice is on record. In reality, the court will generally go with the “appointed” guardian by the parent barring some significant reason. Some courts will also give credence to the minor child’s view, if over fourteen (14) years of age.
Guardianship for Person vs. Property
Options exist to name a guardian of the person and a guardian of the property:
- The guardian-person would take care of the everyday caregiving of the minor child including shelter, healthcare, taking the minor child to school, etc.
- The guardian-property would be in charge of all the financial issues that occur like paying the bills, investing for college, etc.
Most people know a person that is great with children but are wanton with money and another person that is great with money but very cold toward children. While finding one person to handle all the duties is ideal, splitting out the duties of guardianship could be an alternative way to look out for a minor child’s interest.
Protect Your Wishes
If you have minor children, it is always best to have an estate plan. But, at a minimum, parents should have a guardianship document in place to protect their children and ensure their wishes are taken under advisement by the courts. Remember, take charge of your wishes or the courts will interpreted them! A little time and money now can protect your wishes, your family and your assets later!