Who Will Take Care of the Kids? (Part I)

Filed Under (Wills and Estates) on 06-14-2012

Writing a Will, Plan that Will, Will Forms

One of the main reasons for writing a will is to be sure that your underage children are provided for. A will can be used to do two major things: choose someone to care for your children and to make sure that your children’s inheritance is used to benefit them.

First, you need to choose a guardian to care for your children if anything should happen to you. Keep in mind the following when deciding who to pick.

1.    Is the person you’re thinking of selecting willing to the job? It is important to ask if he or she is up for the task should something happen to you.

2.    You want your kids in capable hands and to be wanted, so be sure the person you choose is enthusiastic and both physically and financially able to raise your child.

3.    Be sure to select one or more alternate guardians in case your first choice cannot or does not want the job if the time comes.

4.    Be sure that your will and the other parent’s will list the same person as guardian.  That way, if you should both die at the same time, there will be no confusion or dispute about who you want to care for your children.

If there is a surviving parent whose parental rights have not been legally terminated, the court will place the children in the care of that parent.

What if I am divorced?

If you’re divorced and do not want the child’s other parent to be his or her guardian, you will need good reasons for this decision. The two most common arguments for barring the other parent from taking custody are, first, abandonment (you have not seen the other parent in ten years) or second, evidence that the other parent would be a harmful influence to your child. These arguments may be difficult to prove, however, and it is a good idea to include a section in your will where you explain your choice of guardian. This may not be the time for “do it yourself” estate planning. Instead, you may want to get legal help if you are concerned about the other parent’s claim to your child. Again, since the other parent normally gets first claim to his or her child, the guardian you choose will probably only gain custody if both parents are not available.

For more information about planning your will, check out Planning a Will in Colorado, Bradford’s Legal Series.