Many parents who visit a lawyer for estate planning are more concerned with this one issue than any other.
If the parents had custody and both parents die, then a court needs to appoint a legal guardian for the children. If one parent dies or become incapacitated, usually the surviving parent will either keep custody of any children, or will get custody of the children if the parents are divorced or never married. But even this is not always the case.
And in the case of divorced parents or parents who were never married, the parent with custody may have serious reservations about the children going to live with a parent who they are convinced is abusive, an alcoholic, a drug addict, irresponsible, or just doesn't care about the children.
But no matter what the custodial parent does or says or writes or puts in a Will, the court is not required to follow those wishes. Under Tennessee law as set out by the state legislature, the probate court or juvenile court (the matter could end up in either court depending on the circumstances) is supposed to decide child custody based on what is in the child's best interest. Now, under cases decided by the Tennessee Supreme Court and the Unites States Supreme Court, the court making the decision about custody should automatically award custody to the surviving biological parent, unless there is clear proof that placing the child with that parent will expose the child to a substantial risk of substantial harm. This doesn't include a situation where there is a chance of a minor problem, but a substantial risk of substantial harm, and the cases taking this position have done so on the basis that there is a constitutionally protected right to parent your own children, and that this right is not lost easily. (See What Is Needed To Remove A Child For Abuse Or Neglect.)
However, regardless the standard used by a court in deciding custody, after your death you have only one good way to influence the court's decision -- what you set out in your will, or in some similar document, sometimes called a Nomination of Guardian.
Improving
Your Chances
While you nominate
the guardian you want, the court actually makes the decision. Since
you will not be there to testify at the time, what you want to do is set
forth in considerable detail all of the reasons you feel the court should
approve your nominee as guardian, and also all of the reasons others you
think might seek custody should not be awarded custody. Setting out
these reasons against are particularly important when you do not want a
surviving parent to get custody.
While the court is not required to follow your wishes, and may even hear evidence persuading the court that either your concerns were unfounded or that the conditions giving rise to your concerns have changed, most judges will give considerable weight to rational and well- stated reasons for your preference. After all, the court assumes you loved your child and knew your child and the overall situation better than the court ever will.
Factors
to Consider
In considering who you would
want to nominate, there are a number of factors to consider: will this
person be able to care for your children until they are 18, or even until
21; even if one person is suitable, might another one be better; how stable
is the nominee's marriage; what kind of move and disruption in your child's
life would it cause to live with the guardian you nominate, including the
effect on education and childhood friendships; parenting philosophies;
financial resources; the effect on your child's relationship with your
extended family; and religious upbringing are but a few.
Always make sure your "nominee" would be willing to accept the task of raising your children. Believe it or not, some people might not view your children as angelic blessings in their life. Even a best friend or close sibling may be unwilling to take on the burden of caring for more children. If your nominee is unwilling to take your children, you create needless delay and uncertainty for your children, and may force them temporarily into foster care.
You also should always nominate alternate choices for guardian, in case your first choice is unable to take your children when needed.
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