In today’s episode, I wanted to talk about whether or not you should name a legal guardian for your child in your separation or settlement agreement in the context of your divorce. First, let me just start by describing what a legal guardian is. A legal guardian is basically an adult who is responsible for taking care of your child when you and your co-parent are not alive or not capable of caring for your child, and your child is still a minor, is under the age of 18.
Where is the most important place to name a legal guardian for your child? It is not your separation or settlement agreement. It’s your will. That kind of document and other estate planning documents are drafted in collaboration with your trusts and estates attorney. If you are concerned about naming a legal guardian for your child and there’s any urgency to that concern, more than anything, you really want to speak with a trusts and estates attorney and make sure that your will clearly specifies your preference for a legal guardian and potentially an alternate legal guardian for your child or your children.
However, for a lot of couples going through the divorce process, they also choose to identify a legal guardian in part of the custody section of their agreement. Why would they do that? If the will is really the important, valuable place to name a legal guardian, why would you also repeat it then in your separation or settlement agreement?
Well, for one, sometimes parents who are going through the divorce process have not put their estate planning documents together yet, including their will. They don’t have a will, and so they don’t have a legal guardian named in their will. When they’re in the midst of the divorce process, it can feel like maybe taking on a little bit too much to also start drafting all of their estate planning documents. So instead of scrambling to put together a will and name a legal guardian, they’ll start by identifying that person in their divorce agreement, in their separation or settlement agreement. Then when they take on the drafting of their different estate documents, in their will, they will properly name a guardian and probably an alternate guardian for their child. If they don’t have a will, it makes sense to go ahead and include what you’re thinking in terms of guardianship in your divorce agreement.
Then, in cases where people do have a will already in place, which many parents do, often the birth of a child is an impetus for putting that in place. Even if you do have a will that names a legal guardian for your kids, it can feel like such an important designation that it may be the kind of thing that you want to reiterate in another important document like your divorce agreement.
Finally, I think there is a subset of couples in which the parents disagree about who should be named as the legal guardian for their kids. One or both of them may want to use the divorce agreement to enforce and to really lock in the selection of a particular person as the legal guardian for their kids. They may have named a person in their wills, but then they want the divorce agreement to obligate each of them to continue to name that person and to not change the designation of that person in their wills. It’s that subset of parents that I want to speak to in this episode. I want to talk about the feasibility of doing that via your divorce agreement.
The first thing I want to clarify, and this may be self-evident to you, but if you pass away before your child turns 18 but your co-parent is alive, then you, in the vast majority of cases, do not need a legal guardian for your child because your co-parent, the child’s other parent, is their legal parent and has sole custody as of your death, God forbid, before your child turns 18. The death of one parent is not something, generally speaking, that leads to the need for or the designation of a legal guardian for the child. I just want to be clear. I’m talking about situations in which both parents have passed away before the child turns 18. Obviously, thankfully, that’s very rare. If that is the case, then the surrogate’s court, and that’s New York-specific, and whatever the relevant court is in your area, the court is tasked with naming a legal guardian for the child, an adult to take care of the child. They will look to the names of adults who were designated in the estate planning documents and potentially in the divorce agreement of both parents.
Generally speaking, if a lot of time has passed between the death of each parent, so maybe one parent died five years ago, and then five years later, the other parent died, and at that time, it has become relevant to name a legal guardian for the child, the court may look primarily at that more recently deceased parent’s estate planning documents just because it can be hard to say what may have changed in the ensuing five years between the death of the first parent and the death of the second. To some degree, the more recent parent to die, their designation may end up having a little bit more weight to it in the eyes of the court but it’s hard to say because it’s a very fact-specific inquiry. Essentially, the court is really looking to serve, as any court does, the best interests of the child, and it can be hard to predict what they will believe to be in the best interest of the child.
The key thing to remember is that the court is in no way bound by whom the parents designated as the legal guardian. If the court determines that the designation of that person is not in the child’s best interests, they do not have to follow the parents’ wills. Similarly, neither parent is legally bound to follow the divorce agreement with regard to naming or designating a legal guardian. At the end of the day, that designation really needs to be, in the eyes of the designating parent, what is in the child’s best interests. And in good faith, that is something that could change. If it did change, let’s say that five years ago when you were divorcing, you really genuinely believed that your spouse’s brother, who lived in the same city as your family, would be the best guardian for your kids, but then let’s say that your spouse passes away, your spouse’s brother moves away, and in good faith, that has really changed your thinking about who would be in the best interests of your kids to be named as legal guardian in the event that you were to pass away before they turned 18. Your thinking might transition to somebody who lives close to where you currently live.
Essentially, the divorce agreement that you will have at the conclusion of your divorce negotiation is a completely acceptable place to include a designation of a legal guardian. It’s great to do that if you haven’t designated a guardian anywhere else. There’s absolutely no harm in doing it if you are wanting to just reiterate and reinforce what you have said elsewhere in your other estate planning documents, specifically in your will. You want to not rely on the divorce agreement as being some sort of legal obligation to name a certain person as the legal guardian for your kids or an effective means of enforcing that legal obligation because it simply is not that.
As you plan for the unlikely event that you and your co-parent were to pass away before your kids turn 18, oftentimes, there are much more effective methods of planning for your kids’ future that a trusts and estates attorney can help you with. I’m thinking specifically of trusts that can be created to provide for your children after your passing that can regulate, in some cases, to a great degree of detail, how at least certain funds are used on your children’s behalf, and in that way, can also regulate some of the parenting decisions that are made on your children’s behalf even after your passing.
You are well-served as a parent, first of all, to plan for the unlikely event that you pass away before your kids turn 18, but second of all, to the degree you want to do that, the right place to do that is with a trusts and estates attorney much more so than in your divorce process. However, it doesn’t hurt to include naming a legal guardian in your divorce agreement. You’re certainly encouraged to do so if you haven’t done so elsewhere, but you don’t want to rely on that as completing or legally enforcing your wishes for your child following your death.
That was our mini-episode on naming a legal guardian for your child. I hope it was helpful for you.