Question: My children’s father has never been a part of their lives.  In my Will, can I name a guardian for my kids, other than their father?

Answer: Nominating a guardian to raise your minor children is a difficult decision for any parent.  The prospect of a deadbeat Dad, gaining custody, will keep you up at nights.  Can you nominate a guardian to step ahead of your children’s father?…not necessarily.

Courts approach this type of scenario favoring a Parent’s right to custody, over a nominated Guardian’s right to Guardianship.  This inclination does not apply in all situations.

If circumstances support Guardianship as a more favorable alternative to parental custody, your ex may be left out.  Such factors include: history of the Father’s abuse or substance abuse, and criminal record.  Less substantial factors include continuity of the child’s upbringing, and the child’s own input.

A Judge will look to maintain a child’s status quo, as much as possible.  In this hypothetical scenario, your kids will lose you as their primary parent.  This change is devastating.  A thoughtful Judge would support keeping them in their home and school, for consistency.  When they reach a certain age, their own opinions will be solicited and considered.

I recommend describing the reasons for your concern in your Will, and naming the Guardian you desire.  Though not a guarantee, a Will containing this language is a must for single parents like you.

Attorney James Haroutunian practices estate planning and real estate law.  His blog can be found at  Contact him at 790 Boston Road, Billerica, 978-671-0711 or email him at

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