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Minor Children Guardianship and Wills

The Difference Between Custody and Guardianship

Many clients’ wish to designate to whom their children will go to in the event that they pass away and then put that designation in their Last Will and Testament. Its important to understand that there is a difference between custody of a child and being a child’s guardian and there are significant differences in how the Court system handles those issues.

If both biological parents of the minor child remain married to each other and have a will prepared, (which is common) in which they provide for a guardian in the event of both of their deaths, the Courts generally give a great deal of weight to that opinion and preference. However, the ultimate decision is up to the Court and is based upon an evaluation of the designated guardian and their fitness as well as an evaluation of what is in the child or children’s best interest. This decision is often made by the Probate Court in Ohio and involves the Probate Court designating a Guardian of the Person who then physically will be raising the child. The parents may also designate in their will an individual who would oversee the financial affairs of the child. This is often referred to as a Guardian of the Estate or sometimes a Trustee. This individual may or may not be the same individual as the Guardian of the Person. Therefore, if they are not the same individual, then the Guardian of the Person will have the physical possession of the child and a different individual serving as Guardian of the Estate (or Trustee) shall have control of the financial issues and assets of the child. Biological parents in their wills can designate one or two individuals to fulfill these two roles and again, after an appropriate evaluation by the Court as to their respective fitness and the best interest of the children, the Court will generally give great weight to these wishes by the biological parents.

These examples, however, regarding guardianship are not the same as custody of a child. Custody of a child involves parental rights. In the above example, both parents are the biological parents of the children and both are deceased. When married parents don’t die together in a common accident or disaster, the surviving parent always retains custody of the child; this is not a guardianship situation. There is no Court proceeding and no determination of guardianship, because the surviving parent has custody of the children as a matter of law.

The conflict and confusion however arises when there are divorced or separated biological parents. In that situation, often clients will want to designate a current spouse or someone else other than the biological parent as the guardian of the children. That designation will require Court action and often will not be successful. Court’s generally, provided the surviving biological parent is not un-fit and is not unwilling to exercise their parental custodial rights, defer to the surviving biological parent taking possession of the child or children, if they seek it – irrespective of the wishes of the decedent parent and irrespective of any designation of guardianship in their will.

Generally, if the parents are divorced, the non-custodial parent assumes full custody. If the parents were never married, the child’s other biological parent can come forward and petition the court for custody. Custody will generally be granted to the surviving biological parent seeking custody, unless the court finds the surviving parent to be unfit. The Court will generally only consider another individual to be appointed as guardian only if the second parent dies. If the second parent leaves a will naming a guardian, those wishes usually guide the court’s decision. Otherwise, the court might look to the guardian named in the first deceased parent’s will.

Additionally, the respective Court that determines custody or guardianship may very. If the parties are divorced and the County has a Domestic Relations Division, then the decision will likely be made in that Court. However if the parties were never married, the decision will likely be made in the County Juvenile Court. As different Counties have different Court options, it will also sometimes depends in which County the case is being heard and may be in the Common Pleas General, Probate, Juvenile or Domestic Relations Division depending on the Court options in that County and the parties specific situation.

The distressing issue for may clients is that their significant other, who may very well have raised the children for years with them and who may very well have had substantially more impact in the children’s daily life than the surviving parent, is not likely to be designated the guardian of the children over the biological parent’s custody rights – absent an independent conclusion by the Court that the biological parent is unfit.

While a divorced parent can certainly express his or her wishes to the Court with respect to the appointment of a guardian for his or her children and request that the Court appoint their significant other to that role, it is not assured those expressed wishes will be followed if a biological parent seeks custody.

It is important to also understand the limitations and time constraints upon a probate procedure. Frequently a will is not filed with the Probate Court for at least a month after the party has passed away. It is highly unlikely that someone has not stepped in from a practical point of view and taken physical possession of any minor children. There is nothing stopping a biological parent for example from immediately upon news of the other parent’s death, filing a motion with either the Juvenile or Domestic Relations Court, for possession of the minor children. They do not need to wait for the will to be filed with the Probate Court or in any fashion take into account anything that the will states. In fact, it is very likely that this filing will happen well before any will is publicly filed and therefore the views and preferences may not even be known or reviewed by the Court that makes a decision on the custody of the children.

It’s important for clients to appreciate the practical and legal limitations that their preference for designation of guardianship have in their wills. While this preference works well in households that have two biological parents and both parents die, these designations have very limited benefit and may not even be considered in households where the deceased parent is divorced or separated from the surviving parent – but has a significant other. Its important to discuss with the significant other the practical realities of a custody dispute and the need to take action immediately – well before any probate proceeding, if they wish to be awarded custody of the child.

This situation would not arise, however, if the significant other has legally adopted the children as their child. (This generally requires either the consent of the other surviving biological parent, or their lack of participation both financially and through communication for over one year in the child’s life.) The safest way to ensure that a step parent is in fact going to be designated the parent after the biological parent is deceased, is to either reach an agreement with the other biological parent or alternatively, do a step parent adoption prior to the death of the parent/spouse. If the stepparent has formally adopted the children, their rights would then prevail and custody would default to them just like in a two biological parent household where the biological parent survives – and like in that scenario, no Court proceeding would be necessary.

Unfortunately without a step parent adoption, the options for the step parent to obtain possession of the child over a fit, willing biological surviving parent are slim and will almost certainly result in a custody dispute before the Courts. Designating a stepparent as the guardian where there is a surviving biological parent is likely to simply increase the potential for legal conflict – without adding much substantively to the process. Because the step-parent will believe they are pursuing your wishes, while the biological parent will believe they are pursuing their parental rights, both parties will be pursuing what they believe to be correct. The practical reality is that the children, who just lost their parent and most likely the parent who raised them the most, will be put through a custody dispute process that will likely take months to complete – during a very difficult time for them emotionally.

Because of this, one should carefully consider and discuss with a former spouse what would occur if either of them were to pass away. While this discussion is not necessarily pleasant to have with a former spouse, its better to address these issues between the adults rather than leave it up to a Court battle that puts the children through the process during this difficult time. With an understanding of the other biological parent’s preferences and expectations, designation of a step-parent or other third party will more likely be successful and avoid the potential for a custody dispute court battle. Understanding the biological parent’s rights and desires as well as sharing your perspective can reduce the potential for conflict down the road. While a custody dispute may in the end be unavoidable, to the extent that expectations and understandings can be expressed and potentially resolved is clearly in the best interest of the children.