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Texas Guardianship of Children

Wills Attorney Austin Texas Lawyer


Guardianship for Your Children

Choose a personal guardian -- someone to raise your children in the unlikely
event you can't.
If your children are young, you've probably thought about who would raise them
if for some reason you or another parent couldn't. It's not an easy thing to
consider, but with a simple arrangement of a guardian in your will, you can feel
sure that, in the extremely unlikely event you can't raise your kids, they will
be well cared for.

Naming a Personal Guardian
You should name one personal guardian (and one alternate, in case your first
choice can't serve) for each of your children.
Legally, you may name more than one guardian, but it's generally not a good idea
because of the possibility that the coguardians will later disagree. On the
other hand, if you prefer that two people care for your child -- for example, a
stable couple who would act as coparents -- name both of them, so that they each
have the legal power to make important decisions on behalf of your child.
Here are some factors to consider when choosing a personal guardian:

Is the prospective guardian old enough? (You must choose an adult -- 18 years
old in most states.)
Does the prospective guardian have a genuine concern for your children's
welfare?
Is the prospective guardian physically able to handle the job?
Does he or she have the time?
Does he or she have kids of an age close to that of your children?
Can you provide enough assets to raise the children? If not, can your
prospective guardian afford to bring them up?
Does the prospective guardian share your moral beliefs?
Would your children have to move?

If you're having a hard time choosing someone, take some time to talk with the
person you're considering. One or more of your candidates may not be willing or
able to accept the responsibility, or their feelings about acting as guardian
may help you decide.

Choosing Different Guardians for Different Children
Most people want their children to stay together; if you do, name the same
personal guardian for all of your kids.
You can, however, name different personal guardians for different children. Some
parents may do this if their children are not close in age or if they have
strong attachments to different adults outside of the immediate family. For
instance, one child may spend a lot of time with a grandparent while another
child may be close to an aunt and uncle. Or, if you have children from different
marriages, they may be close to different adults. In every situation, you want
to choose the personal guardian you believe would be best able to care for each
child.

Choosing a Different Person to Watch the Checkbook
Some parents name one person to be the children's personal guardian and a
different person to look after financial matters. Often this is because the
person who would be the best surrogate parent would not be the best person to
handle the money.
For example, you might feel that your brother-in-law would provide the most
stable, loving home for your kids, but not have much faith in his abilities as a
financial manager. Perhaps you have a close friend who cares about your kids and
would be better at dealing with the economic aspects of bringing them up.
Provided that your brother-in-law and your friend agree and you trust them to
get along in the best interest of your children, you can name one as personal
guardian and the other as custodian or trustee to manage your children's
inheritance.

If You and the Other Parent Can't Agree
When you and your child's other parent make your wills, you should name the same
person as personal guardian. If you don't agree on whom to name, there could be
a court fight if both of you die while the child is still a minor. Faced with
conflicting wishes, a judge would have to make a choice based on the evidence of
what's in the best interests of your child.

Writing a Letter of Explanation
Leaving a written explanation may be important if you think that a judge could
have reason to question your choice for personal guardian.
Judges are required to act in the child's best interests, so in your letter
explain why your choice is best for your child. Here are some issues the judge
will consider:

the child's preference, to the extent it can be ascertained
who will provide the greatest stability and continuity of care
who will best meet the child's needs
the relationships between the child and the adults being considered for
guardian, and
the moral fitness and conduct of the proposed guardians.

If you are in either of the following situations, writing an explanatory letter
may be a good idea:

If You Don't Want the Other Parent to Raise Your Child
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 clearly unfit.
In most cases, it is difficult to prove that a parent is unfit, unless he or she
has serious problems such as chronic drug or alcohol abuse, mental illness, or a
history of child abuse.
If you honestly believe the other parent is incapable of caring for your
children properly, or simply won't assume the responsibility, you should write a
letter explaining why.

If Your Child's Other Parent Is Your Same-Sex Partner
If you coparent your children with a same-sex partner, you will probably want to
name your partner as the personal guardian of your children. Because some courts
will be unfamiliar with your family structure, consider writing a letter to
fully explain to the court why it's important for your partner to be your
children's personal guardian.





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