As a Cary wills lawyer, I can’t stress enough how important it is for all parents to create a comprehensive plan that will protect their children should the unthinkable occur.
But what happens if you are divorced and can’t come to an agreement with your ex-spouse as to who should raise your children if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?
In most cases, if your child’s biological parent is still living at the time of your death and you share custody, your children will be raised by the surviving parent, unless there is some clear reason why that should not happen.
There is nothing you can do about this, unless you can prove that the child’s biological parent is unfit to raise your child and make a compelling case as to why your guardianship nominations should be honored under the circumstances.
Examples of this might include a severe drug addiction, criminal past or a history of abuse.
However, if this is unlikely, the next best thing to do is name guardians anyway so that your wishes for the care of your children will be known and taken into consideration if your ex-spouse should also pass away before your children reach the age of 18.
This is especially important in the event your ex-spouse did not legally document his or her guardianship wishes upon passing, as your wishes would then be given priority over, say, an unwilling step-parent (just think back to the Cinderella story for a chilling example of this).
In addition, you also should consider having an emergency plan in place in case catastrophe should ever strike while your children are in your care. You can read more about such emergency planning here.
Finally, if you are a single parent and have concerns not only about guardianship, but also concerning your ex-spouse handling any assets you would leave to your children if you passed away first, I encourage you to meet with a Cary wills lawyer right away so you can ensure such funds would managed by the person you select and are used only for your children’s care.