How to Pick a Custodial Guardian

Quick Overview

A custodial guardian, the person in charge of the day-to-day care of any children under the age of 18, ideally is:

• Willing to do the job
• Healthy and young enough to stay with the kids until they are 18 years old
• They don't have to be local
• They also can be your trustee

Grandparents

• Double-check age and health — the court wants to permanently place a child
• If they are the best choice, let's support them with resources and financial support as they age

How does the process work?

• The custodial guardian needs to be approved by the court
• The court will consider your nomination, but they can select the person they think is best for the job
• If no one is nominated, they will ask everyone in your family if they will serve, before the child is placed in foster care
• An older child has a voice in where they want to stay and the possibility of becoming an emancipated minor (adult legal status) after the age of 16

What if you have international family?

• Make sure to nominate your permanent guardian as well as a temporary local guardian
• Doing an estate plan is more important — you need to authorize resources to help pay for legal expenses, the process is more complex, probate is very bad
• Your international guardian may need to adopt the child to take them overseas

What if I have problematic family members (drug, alcohol, abuse)?

• We can have you prepare a detailed declaration for the judge on why they should never be considered (least private, most effective)
• We can make a simple statement you do not want them to be considered (this will probably work, it's not totally private, but does not require disclosing details)
• We can make a long list of who else to consider first (most private, but won't let the judge know that the problematic person is problematic)

How to Pick a Custodial Guardian

When you're a parent of kids under 18, estate planning is about much more than money. It's about ensuring your children are well taken care of no matter what happens to you and your partner. That's what the custodial guardian is all about.

If you pass away or become incapacitated, the custodial guardian is the person you choose to take on the sacred responsibility of raising your kids until they are 18. This person is in charge of housing, feeding, clothing, schooling, and making decisions about medical care for your kids. It's everything but the money.

You can pick a different person (if you want) to be the financial guardian/children's trustee, managing money for your kids until they're old enough and mature enough to take on that responsibility themselves.

How a Nominated Guardian Becomes the Custodial Guardian

You can't automatically make someone take care of your kids. Your nominated guardian can decline to serve, and in California, they also have to be approved by the court. You must nominate a person, not a professional service provider.

If the person you nominate declines to serve, it will go to the next person nominated. If no one else is listed, Child Protective Services will reach out to everyone in your family to see if someone is able to take the children.

Whomever is appointed as custodial guardian will have the option of quitting at any time. They can call CPS and tell them they no longer want to care for the kids, and CPS will come collect the children within 24 hours.

If you are divorced the other parent will have custody if you pass away. You can nominate the person to have custody if the other parent has also passed away. If the other parent makes a different nomination the court picks between the two nominees using a "best interest of the child" standard.

How Court Approval Works

• Any person who wants to serve may petition the court to approve their request.
• If there is more than one applicant, the Court will select a guardian based on what is in the best interest of the child.
• The court will consider your nomination as important evidence, but will also consider all other relevant evidence — what the child wants, criminal convictions, health problems, etc.
• Courts prefer a permanent placement, and that usually means family — friends are more likely to decline to serve or to step down.
• The courts will continue to monitor the child and the custodial guardian until the child is an adult.

Pick a Good Home For the Long Term

Choose someone who would provide the best permanent home for your children, even if they don't live nearby. Young kids can move. If your children are older at the time, the court will consider their preferences. If children are in high school, they get a lot of vote in where they want to stay. If they want to stay where they are, they can apply to become an emancipated minor or stay with a friend.

Grandparents Are a Risky Choice

For many clients their first instinct is to pick their own parents to serve as custodial guardian, but this comes with a few significant problems.

The first problem is that it can set up your kids to lose another set of "parents" again in the first few decades of their life. Kids often form a new parental bond with the custodial guardian. If that person is already at an advanced age, your kids might soon go through another big emotional loss.

The second issue is that age inevitably slows everyone down. Grandparents who have the energy to keep up with a 1-year-old now may not have the stamina to provide the right support to a teenager in 15 years.

And remember that if your parents are close to your kids now, they can still be loving, supportive figures in your kids' lives even if they don't become the custodial guardian. They are still family. For some people, regardless of age, parents are the right choice. We can encourage your trustee to provide help through nannies, housekeepers, and help pay for the parents' housing.

How We Support Guardians in Our Trusts

The biggest problem with guardian nominations in most estate plans is failure to authorize gifts to the custodial guardian. The presumption under the law is that the funds in your estate are for the support of your children, not for the support of the custodial guardian.

We recommend and include clauses that authorize the trustee to:

• Allow your guardian to live in your home rent free, and use your car if needed
• Pay for adoption expenses and any other legal fees of guardians
• Provide a power of attorney over child care for medical or educational decisions
• Pay for expenses related to visiting both sides of the family

International Guardians Take a Little Extra Planning

For a lot of clients, the perfect person to serve as custodial guardian lives outside of the United States. This is completely ok. It just takes a little more planning.

We recommend naming someone living in the United States to serve as a temporary custodial guardian. Moving a child out of the country requires a court process — either adoption or permission through the probate court. It can take a year for the legal process that lets a foreign person adopt your kids and move them out of the country. Your temporary custodial guardian can look after your kids during this time.

Many people believe that your family can come, get your kids, and quickly take them home to another country. But it's actually illegal to move your kids like this, and it can make it very hard for your kids or family to come back to the country later.

Keeping Problematic Family Members from Becoming Guardian

You have several options, from strongest to softest:

• Your Strongest Option: Include a signed declaration setting out the problematic facts that explains why someone is not a good choice. This is formal and will not be private.
• Your Medium Option: Write a letter to your family explaining your choices. This is more private and doesn't have to become part of your estate plan.
• Your Softest Option: Nominate a long list of other people to serve ahead of the problematic person. The court is likely to go with your choice before they pick someone themselves.