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December 3, 2010 > Legal Eyes

Legal Eyes

Who takes care of children?

By Stephen F. Von Till

Q: If no Last Will, who takes care of children?

A: Court decides children's "best interests."

If one makes a Will or Living Trust, one can name the guardian for the child and the trustee for the assets that the child inherits. These can be two different persons or the same.

Naming the child's guardian in the Will or Trust gives guidance to the court, but is not binding upon the Court.

Probate Code 1514 states that the court shall appoint the guardian named in the Will "unless the court determines that the nominee is unsuitable." The court is to be guided by "the proposed guardian's concern for and interest in the welfare" of the child and by "the proposed guardian's ability to manage and preserve" the assets for the child.

If the child "is of sufficient age to form an intelligent preference" for a guardian, the law provides that the court shall give "consideration to that preference." A petition for guardianship may be filed by any person on behalf of the minor. If the minor is over 12 years of age, the minor may file the petition.

In Aviles v. Hickerson there was a battle for guardianship between a paternal grandmother and non-relatives. The child's mother had given the child to Mr. & Mrs. Hickerson for care four days after birth. The Hickersons claimed that they had a stable home life, the husband was employed, they were childless, they were buying their home, and the wife would care for the child.

Armeda Aviles, the paternal grandmother, objected. She claimed that as a relative she was entitled to preference. She claimed to be a fit and proper person.

The Court agreed that the grandmother was a fit and proper person, but did not award guardianship to her. Her relationship as grandmother did not entitle her to a legal preference.

Guardianship was awarded to the Hickersons.

The court found that the grandmother's home environment was unsatisfactory. Others living in the home had criminal records, profane language was frequent, and the home was not clean. There was conflicting evidence on these points, but the trial court was entitled to make its findings and come to a decision.

THE LESSONS: Avoid a battle for guardianship of your children. Make a Will or Living Trust expressing your preferences. Choose guardians who are responsible and trustworthy so that the court follows your wishes.

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