Guardianship of Your Minor Children

July 21, 2009

Recent events regarding the custody and guardianship of Michael Jackson's children have garnered increased interest from parents with minor children.

The most common manner in which a guardian is nominated is the inclusion of such a provision in one's Will. However, California recognizes other methods of accomplishing nominations of guardians.

Not nominating a guardian may have unwanted or intended circumstances. Who a parent chooses as potential guardian is of tantamount importance and can present numerous challenges. Some considerations a parent might take into account while choosing a guardian would be a person who possesses similar values, shares religious or spiritual practices, has room in their home and their lives for your children and in some instances, has sufficient resources to provide for you children.

Let's assume a couple with a minor son suffer an untimely fate and neither had included a nomination of guardianship as part of their respective estate plans.

Say both the mother and father each have sisters, and both sisters attempt to gain custody of the children through the probate court.

The mother's sister is single, lives locally, has a good job and shares similar values and ideals as the deceased couple. She often visits with her nephew, spends a considerable amount of time with him and they have a great relationship.

Now let's assume the father's sister is married, has significant assets, but does not and never has shared the same values, principals, ethics or political ideologies as her brother or his wife. She lives in another state and has had limited connection with her nephew.

Presumptively, both the mother and father might have nominated the mother's sister as guardian. However, absent a nomination, the court may look at a two parent household and that household's finances in making their decision of where to place the minor child.

Be assured that nominating a guardian is not binding on a court, but the court will usually acquiesce to a parent's choice of guardian absent extenuating circumstances.