LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

500 E Pratt St, Suite 900, Baltimore, MD 21202-3133 • 410.332.8626 • info@mdlgbtestateplanning.com

Choosing a Guardian for Your Minor Child

By   |  

Any parent will tell you that raising children isn’t easy. The late-night feedings, public tantrums, and constant need for attention can leave even the most devoted mom or dad feeling exhausted. But for those of us in the LGBTQ community, simply becoming a parent can be just as challenging. Whether we try adoption, surrogacy, or other means, the process is likely to involve anxious waiting, many false starts, and difficult legal hurdles.

It’s natural then, that same-sex couples and other LGBTQ parents are especially grateful for their children and would do anything to protect them. This sense of devotion should include naming a suitable guardian to raise the child in case the parents are unexpectedly out of the picture.

The thought of having someone else raise your children may be difficult to bear. After all, no one else’s love could ever match your own. It is for this reason that every parent should give careful thought to who their child’s guardian should be. Here are some essential factors to consider.

Every parent should give careful thought to who their child’s guardian should be.

First of all, you want someone who shares your values and will instill them in your child just as you would. Do you want your child to be raised in a certain religion? Or perhaps intentionally with no religious upbringing? In addition to a candidate’s religious beliefs, you should consider their parenting style and thoughts on education.

Another important factor is where the potential guardian lives. If something happened to you, would you want to child to have to move to a new location, change schools, and make new friends? That could be a difficult transition under the best of circumstances, but after the death of parent, it could be especially hard on a young person.

You should also consider the life circumstances of a possible guardian. Are they young enough to raise your child? Would they have enough space at home to accommodate a new family member? Are they at home enough to be an effective parent? And are they financially secure? A guardian doesn’t need to be rich, but someone who doesn’t manage money well might have trouble creating a stable home environment.

It’s worth mentioning that the guardian won’t be expected to pay for your child’s needs out of pocket. The inheritance you leave behind—whether in the form of cash, real estate, or life insurance proceeds—would be used for this purpose.

Once you have identified a possible guardian, discuss the idea with the person to make sure he or she is willing to take on the job. The next step is to prepare a Last Will & Testament that says who you would like the guardian to be. Strictly speaking, your will doesn’t appoint the guardian, it “nominates” the guardian, subject to the court’s approval.

If your child’s other parent is living at the time of your death, he or she has natural parental rights that will probably supersede any guardianship provisions in your Will. This is true whether the other parent is your current spouse or partner or an ex you never speak to (but not if the “parent” was an egg or sperm donor or surrogate who waived their parental rights).

Bear in mind that if your partner or spouse is not the child’s legal parent, whether through birth or adoption, your other half will probably have no legal right to custody unless you name him or her as guardian under your Will. If you’re unsure of the legal relationship between the people involved, consult an attorney for guidance.

Don’t leave the care of your child to chance. Prepare a will that names the right person as guardian and take comfort in knowing that you are ready for the unexpected.

Lee Carpenter is an Estates & Trusts attorney at Saul Ewing Arnstein & Lehr LLP and an Adjunct Professor at the University of Maryland Carey School of Law. This article is intended to provide general information about legal topics and should not be construed as legal advice. For qualified legal counsel contact Lee Carpenter at Lee.Carpenter@saul.com or 410.332.8626.