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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 101755
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Setting up a Will, and wondering if I establish a guardian

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Setting up a Will, and wondering if I establish a guardian for my children in that document, will it have any legal standing if there is another party with rights to custody?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

if I establish a guardian for my children in that document, will it have any legal standing if there is another party with rights to custody?

It will have an impact, but it would not control the decision of the Court. If something should happen to you and there are minor children, then custody would fall unto the other parent, if there is one, or if there is not or if the parent is deemed unfit, the Court would grant custody to whomever it deems proper, be it extended family or a foster family.

The Judge will go off "the best interest of the child" doctrine in making this decision. Kent K. v. Bobby M., 110 P. 3d 1013 - Ariz: Supreme Court 2005. In deciding this, The Judge will look at factors such as general stability of the potential guardian, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc.

Your wishes per the Last Will and Testament as to who should be assigned would be weighed heavily and considered, but would not be "binding" and the Judge can override them if they believe it is proper to do so.

So there is no guarantee, although often, the Judges do follow the wishes of the deceased provided there is no compelling reason not to (i.e. your choice has drug problems, unstable, etc).

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Customer: replied 3 years ago.


So, if the other parent has no custody or visitation in the current parenting plan, would that also factor into the decision? Or would custody always go to the other parent even if that would NOT be in best interest of the child (not because they are "unfit" but because the child does not know the other parent in any way)? Also, would the other parent be able to put something in writing stating that the arrangements in my Will are binding? Or do I just have to take on good faith that he would pass on custody at the time of my death?

Friend,

So, if the other parent has no custody or visitation in the current parenting plan, would that also factor into the decision?

Yes, very much so.

Or would custody always go to the other parent even if that would NOT be in best interest of the child (not because they are "unfit" but because the child does not know the other parent in any way)?

Not at all. If they have been found to be unfit before, the likelihood of them getting custody if something should happen to you is very unlikely.

Also, would the other parent be able to put something in writing stating that the arrangements in my Will are binding?

I am afraid not, because they are not - only the Court can decide who gets custody.

r do I just have to take on good faith that he would pass on custody at the time of my death?

Again, if he is deemed as unfit, the Court would pass over him quickly and unto the next suitable candidate.

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Customer: replied 3 years ago.


So it seems that the court would have the final say, but until that decision is reached would my child be permitted to stay in our home (with her current guardian) or would she be taken away while the court decides?

So it seems that the court would have the final say

Right.

but until that decision is reached would my child be permitted to stay in our home (with her current guardian) or would she be taken away while the court decides?

... this depends on how quickly the current guardian acts. So the other guardian should be instructed that upon anything happening to you, they are to immediately file probate and seek a custody petition as well, to get temporary custody, and then have it confirmed upon final hearing.

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