An important benefit of developing a good estate plan is to communicate clearly your wishes for the guardianship of your minor children.  This article is a discussion of the issues that are germane to selecting the legal guardians for your children.

Why do I need a Legal Guardian for my child?
A child's legal guardian is the adult, designated by the court, who will care for and raise your child until adulthood (age 18), should you be unable to do so yourself.
If you do not select and nominate a guardian in your will, the court will do so upon your death.  If the child’s other parent is still living, he or she is likely to receive sole custody of your child.  If the other parent is not alive and if you have not specified your preferences for guardian, anyone can step forward during the court proceedings and nominate themselves for the job. 

The judge will then choose from among those people.  This may result in a different guardian being chosen by the judge than whom you would have picked, because the judge is only able to choose from amongst the people who present themselves as candidates, and sometimes the people you would have chosen may not present themselves in the proceedings for any number of reasons (they may not want to get involved in family affairs, they may not know of the proceedings, they may not think it’s their place, etc.). 

Furthermore, the judge may have different values or priorities than you do and because of this may pick a different person than you would have, based on factors that you might or might not feel are important.
When you and your child's other parent make your wills, you should name the same person as guardian for your minor children. If you do not, the judge must use his or her own best judgment, based on the evidence of what's in the best interests of your child based solely on the evidence that is presented during the court hearing, in choosing the legal guardian.

How do I Choose a Guardian?
Deciding who will raise your child, should you be unable to do so, is one of the hardest decisions you'll face as a parent and one of the primary reasons that many parents put off preparing their estate plan.

When there’s no obvious choice, it can be very difficult to get past the idea that there is no one, other than you, who is best for the job.  However, part of planning for your children's future is choosing who is the next best person to take on this critically important responsibility. Make a list of all the people who are possible choices, then discuss the benefits and challenges associated with each one with the child's other parent.

People to Consider for Guardian
Grandparents.  If you are fortunate enough to have started your family early and/or your parents were young parents themselves, AND you or your co-parent’s parents are physically, emotionally and financially able, and are willing to give up their “golden years,” grandparents can be a good option.  Many people find that one or more factors make grandparents a less than ideal choice, particularly as time goes by. Consider that even if you do not choose to name them as guardians, grandparents can still be extensively involved in your child's life and be a source of support and relief to your child’s guardian.

Siblings.  Often a sibling is a good option for guardian.  Since they were raised in the same home as you were, they often share similar values and potentially a parenting style that will resonate with your kids.  Sometimes, however, siblings are not the right choice because of their age, maturity, their physical location or a lifestyle that is unaccommodating for children.  In other cases, you may decide against nominating a sibling because your sibling and his or her spouse are raising their child differently than you are.  Your feelings about your sibling’s spouse should be factored into the decision as well.

Friends.  It has been said that friends are the family that you choose for yourself.  If your immediate family does not live nearby, close friends may know your children as well, if not better, than family members. Often friends share similar lifestyles and values to your own. Although not blood relatives, close friends may be in the best position to offer your children the love and continuity they need, which may be particularly important to an older child who may be reluctant to change schools or move out of the area, especially during a time of trauma.  Choosing a friend to be a guardian rather than a family member, however, may make it more difficult on relatives who wish to keep in close contact with the children, particularly around holiday visits.

Factors to Consider about Prospective Guardians
The following potential issues should be considered for each person whom you are considering as nominating to be your child’s guardian.  It is not realistic to expect that one person will be able to fulfill all of your criteria, but it is important to identify someone who meets the characteristics that are most important to your and your child.

• Loves the children.  Do they have a strong affection for your child and a sincere concern for your child's well-being?
  Values.  Are their parenting style, values, morals and religious beliefs compatible with yours?
• Capability.  Are they capable of taking on such an enormous responsibility? Does the person have enough time and energy to devote to your child?  Are they emotionally stable?  Do they have a social network around then to support them and to help with raising your children, if needed?
• Marital Status. Are they married or single?  If they are married, how stable and supportive is the relationship and can it survive the stress of taking in your children?  If they are single, will they be able to handle the responsibility without a partner?
• Other Children.  Do they have other children? If so, would your child fit in with this family and benefit from having other children living in the home?   Would your child do better in a smaller family? Are their children close in age to yours?  Would the prospective guardians’ children be a good influence on yours?
• Finances.  Can they afford to raise your children to adulthood, taking into consideration what money you will be leaving for your children?  Is their current home big enough and if not, can they afford to move?
  Location.  Would your children have to move?  Would they have to transfer to a new home or a new school? 
• Willingness.  Is she or he willing to take on this responsibility?

Factors to Consider Based on the Needs of Your Child

• Child’s Preferences.  Does your child know, love and feel comfortable with the prospective guardian?  Many therapists suggest that children, especially older ones, should be involved in choosing their guardian.
• Flexibility.  How much does your child crave continuity?  How much change could he or she manage?
• Other Siblings.   Could the child be separated from his or her siblings without undue trauma?  Most people want their children to stay together.  In certain cases, however, it may be preferable to different guardians for different children.  Such a situation might arise if your children are not close in age and they each have strong attachments to different adults. Alternatively, if your children have different fathers, it might be appropriate to name a family member from each child’s father’s family to be guardian for that child.

Notifying the Chosen Guardian
Once you have identified one or more potential guardians, talk to each one about how they feel about being named guardian of your child. Having this conversation will give you more information about them that will help you make your final decision. It may be that one of your choices is honored and eager for the responsibility while the other seems nervous or reluctant about it.  Then when you have made your first choice, talk with the prospective guardian before nominating him or her. Tell him or her why you would like them to take on the role and give them a basic sense of the financial resources that will be available for your children upon your death. Give him or her the opportunity to digest the consequences of raising your children, should you die, and an opportunity to back out.  Knowing in advance that they have been selected for this role, the guardian may, in the meantime, take the opportunity to get to know your child better and to promote the relationship between them.

There is no obligation to tell anyone other than the prospective guardian who you have chosen for this role, however.  In certain cases you may have decided against choosing a sibling or grandparent, who may be very hurt or offended not to have been picked. The odds are low that your child will end up needing a guardian and there is no need for anyone else to know in the meantime who you have or have not selected in the interest of preventing hurt feelings or a potential rift in the relationship. 

Changing Guardian Choice as Child Ages
You can specify that your choice of guardian for your children can be different, depending on how old your children are when they need one.

This works particularly well if your first choice of guardian is your child's grandparents, who may be less able to take on the responsibility as time goes by and they get older.  You might specify that the grandparent should be the first choice guardian until the child reaches a certain, age, and after the child reaches a specified age a different guardian can be listed as the primary choice. 

Another situation in which a change like this might be indicated is if your chosen guardian lives far away.  Younger children are more flexible and could be relocated relatively easily if necessary, but as time goes by an older child might prefer to go to a guardian who lives nearby, allowing the child to continue their education in the same school system and maintain friendships.

Naming a Different Guardian of My Children’s Finances
Some parents name one person to be their child’s personal guardian and a different person to look after the child’s money. Often this is because the person who would be the best surrogate parent may not be the most financially savvy person.  One advantage of naming different people for these roles is that it provides checks and balances and more oversight on your child’s well-being.  If you decide to name different people to look after the children and the children’s money, try to name people who will be able to work well together and who will be able to communicate effectively.  If you choose the same person for both roles, this may simplify things and give the guardian access to money when it's needed without having to get permission from someone else before spending money on your child’s behalf. 

 
Child’s Parents are not Married to Each Other
If you and your child’s other parent are both the biological/adoptive parents, then each of you has the presumptive right to be the guardian of your child, should the other die. In this case, a judge will, absent a compelling reason not to, grant custody to the other biological/adoptive parent.  It is possible, if not likely, that the surviving parent could step forward and decline to accept custody of the child.  This is an important reason for naming an alternate guardian in your will.

If you are the biological/adoptive parent but your partner is not, your partner has no presumptive right to be appointed guardian. This is true even if your child has no other living biological/adoptive parent.  If your partner isn't nominated in the will to be your child’s guardian, the judge will not automatically grant guardianship to that person.

If you're separated or divorced from your child’s other adoptive/biological parent and you have sole legal custody, you may feel strongly that your child's other parent is not the best person to have custody of your child should something happen to you.  A judge will almost always grant custody to a biological/adoptive parent unless the surviving parent has legally abandoned the child (not visiting the child or not paying child support) for an extended period or has been proven to be unfit as a parent.

Letters of Explanation
You may choose to write a non-legally binding letter explaining in detail the logic behind your choice of guardian.  This will assist the judge during the guardianship hearings and it may help soothe hurt feelings among other family members or friends who would have liked to have been nominated.  It is also a letter that older children may benefit from reading, to appreciate the choice that you made on their behalf.

Explaining Guardian Choice to the Judge
The judge retains the final say about whom to choose as the guardian of your children, whether you have nominated a guardian or not and is always obligated to do as he or she believes is in the child’s best interest.  The judge will place a high priority on respecting your wishes, as the child’s parents and will be reluctant to deviate from your choice without a compelling reason.  However, if you think that a judge might second guess your choice for guardian, leaving a written explanation as to why you believe your choice is in your child’s best interests may be important.
If you are in either of the following situations, writing an explanatory letter is a particularly good idea.

If You Do Not Want Your Child’s Other Parent Awarded Custody
You may not trust your child's other parent to care for your child if something happens to you. However, a judge will grant custody to a child's surviving parent unless that parent has legally abandoned the child or is patently unfit. It is difficult to prove that a parent is unfit, unless he or she has ongoing, serious and documented problems such as chronic drug or alcohol abuse, incapacitating mental illness, or a proven history of child abuse.

If you firmly believe the other parent is incapable of caring for your child properly and that it is not in the child’s best interest to be placed with that parent. you should write a letter explaining why.

If Your Child's Other Parent Is Your Same-Sex Partner
If you co-parent your children with your same-sex partner, but your same-sex partner has not adopted your child, you can nominate your partner to be your child’s guardian. Although most courts here in the Bay Area are already familiar with same-sex parent family structures, you may want to consider writing a letter to explain in detail to the court why it's important for your partner to be your child’s guardian.  This is particularly important if you think that another friend or family member will try to obtain guardianship of your child during a guardianship hearing.

Letter to the Guardian
Although will choose as guardian the person that you most trust to raise your child in a manner similar to your own, writing a letter to the guardian, outlining plans and desires for your child can be exceedingly helpful.  Furthermore, it can provide great peace of mind to you that you are still able to influence child’s well-being and happiness, even after you’re gone.  Finally, when your child is mature enough to appreciate it, your letter will be very meaningful to your child, showing him or her how much you loved and cared for him or her. 

You may want to include some of the following items in your letter:

• Religion.  Is it important to you that your child receive ongoing religious instruction and participate in particular rites of passage?
• Education.  How important is investing time, money and energy in pursuing educational activities and curriculum?  It may seem obvious to you, for example, that education is a priority, but this is the kind of topic that it helps to be explicit with.
• Extracurricular Activities.  Is it important to you that the child participate in certain activities, such as sports or music, even if it costs significant money to pursue?  Would you like your child to be sent to overnight camp at a certain age? 
• Work.  Do you want your child to be encouraged to seek employment at a certain age?  Would you like to encourage him or her to get a job by withholding allowance or matching earnings?
• Travel.  Is domestic or international travel important to you?  Are there particular places that you would like your child to visit?  Would you consider having a portion of the inheritance that you leave for your child to be used to pay for the guardian’s entire family to go on a trip together so that your child can experience it?
• Family Interaction.  Are there members of your child’s family that you want your child to see on a regular basis, even if your child’s guardian is not a blood relative?  Do you want your child to spend certain holidays with a particular relative?
• Presents.  You might ask your child’s guardian to give the child a certain sum of money or a particular gift at important life events.  Such a gift from you to your child could be paid for out of the child’s inheritance.  An example would be giving your child $5,000 on his or her sixteenth birthday to purchase a used car.  You might ask the guardian to purchase, on your behalf, a gold necklace to be given to your daughter on her first communion.

Conclusion
Choosing a guardian is a difficult decision for most parents, involving many multi-faceted considerations.  This article is intended to give you some things to think about when making the decision, and is not meant to further muddy the waters.  Please remember, unless you are one of the lucky few for whom it is easy to choose, there may be no perfect choice to fill this role.  Nominating the best person from among your available guardian options, however, is infinitely preferable to choosing no one at all.  If you do nothing, you have delegated the decision-making to a judge, who although well-intentioned has only limited information about your preferences for the future of your child.

Disclaimer: This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.