Guardianship for Minor Children of Divorced Parents

Many things change when you go through a divorce. It's important that you update your estate plan, and understand how Guardianship works for your minor children if something happens to you.


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Guardianship for Minor Children of Divorced Parents

You probably already know that your estate plan needs updating as your family situation changes. Certainly the plans you make when you are single change when you get married. Adding children to the family changes the plan again. And a divorce means your estate plan needs updating, particularly if you have minor children.

Having minor children means that you have worries beyond distributing assets appropriately. It is critical that you also provide for the care of your children under age 18 should you and their other parent both pass away (or become incapacitated).

What Is Guardianship?

Any child under age 18 without parents requires a guardianship. Guardianship is a court process that names someone as Guardian to care for a minor child and manage their finances. The Guardianship of a minor remains under the court’s supervision until the child reaches age 18.

Naturally you would want some say in who looks after your children if that becomes necessary. The best way to do that is to include language in your legally binding Will that appoints the person you believe would be right to handle this responsibility. It’s also important to name a back up in case that person cannot serve.

The person you name as Guardian will be considered first for the role. Usually that person will be appointed. However, if the judge deems the choice not in the child’s best interests, then the court could name someone else. However, if you don’t name a Guardian, then the judge must choose between available family members or even a public agency to select a Guardian.

There are also Guardianships for incompetent adults, to protect adults who cannot make their own decisions. Those types of Guardianships can last for the person’s lifetime.

North Carolina has both a Guardian of the Person as well as a Guardian of the Estate. The Guardian of the Estate is only needed if the minor has finances to manage. Some states call Guardianship a “Conservatorship.” It is just a different term for the same process.

Some states require the courts to appoint a guardian based on the child’s wishes. Those states won’t allow a judge to appoint someone as a guardian that a child has filed a written objection against. Of course, in those states, the child must be a certain age, and the court must appoint the person the child nominates unless that goes against the child’s best interests.

What If You’re Divorced?

When you’re divorced, you must pay special attention to your estate plan. Very likely you will want to remove your ex-spouse as a primary decision maker, so that your ex-spouse would no longer be your Executor or your Agent.

You generally cannot name a Guardian to serve if your child’s parent survives you. If your child’s parent is still living, your ex-spouse would still be considered the minor child’s natural Guardian. It’s important to name the person you would want as Guardian if that doesn’t happen, though.

Although the surviving parent usually will serve as Guardian, it would be best to discuss with your ex-spouse plans for visitation with family. For example, if something happens to you, but your parents are still alive, you will want to ensure that your children continue to see their grandparents. Sometimes when the Guardian refuses to allow visitation, the grandparents can go to court to request visitation.

Although it can’t always happen, it is best if talk with your former spouse about plans for Guardianship. It’s smart to have someone in mind to take over if something happens to you both. And for your children’s sake, it’s better if you are on the same page regarding how to handle plans for Guardianship.

Choosing a Guardian for Your Children

Choosing a Guardian for your children sounds like a no-brainer. But it requires some thought. In the case of divorce, often it can be even more difficult because the former spouses may have problems with communication. Regardless of your current marital state, here are some things to consider when choosing a guardian for your children.

Start by considering your values. What do you find important for raising your children? Think about educational goals, religious beliefs, family environment, being close to other family, and even the kinds of experiences you want to see the children have. You and your former spouse should try to create a list that you both find satisfactory.

Next, make a list of everyone you are considering for the role of guardian. If you are having difficulty agreeing, you might consider making a list of names with pros and cons. You and your former spouse could make separate lists and then compare to see if you have any commonalities.

Keep an open mind regarding the process. You want to find the best person possible. That doesn’t mean that you have to limit choices based on marital status. Consider anyone you know and trust, and who you believe would love your child, care for your child, and provide your child with a good start to life.

You should also ensure that you choose someone you think will be able to care for your children long-term, both physically and financially. Also, consider geographic location. Will your children be in the same neighborhood; will they have to move; will they still be near their greatest support group? Your Will also may need to provide for allowing the Guardian to move into the family home while caring for your minor children.

Final Thoughts

Choosing a guardian for your child is difficult even in the best circumstance. When you’re divorced, it can add another layer of complication. However, the most important thing is that you do what is in the best interests of your children.