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Legal Guardians When Divorced Parents Don't Agree

Today's post was written by our all things Wills, Trusts and Estates, Probate and Guardians guru, Steve Worrall.

As both a Cobb County wills and trusts lawyer and a Marietta divorce lawyer, I can't stress enough how important it is for all parents to create a comprehensive plan that will protect their children should the unthinkable occur, your untimely passing.

But what would happen if you are now divorced or never married, and you and your child's other parent can't come to an agreement about who should raise your kids if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?

In most cases, if your child's other biological parent is still living at the time of your death and you share custody, your children will be raised by the surviving parent, unless there is some clear reason why that should not happen.
There is nothing you can do about this, unless your survivor can prove that the child's biological parent is unfit to raise your child and can make a compelling case as to why your guardianship nominations should be honored under the circumstances.

Examples of this might include a severe drug addiction, criminal past or a history of abuse.However, if this isn't your situation, the next best thing to do is name guardians anyway so that your wishes for the care of your children will be known and taken into consideration should the other parent also pass away before your kids reach the age of 18.

This is especially important in the event that the other parent did not legally document his or her guardianship wishes upon his or her death, as your wishes would then be given priority over, say, an unwilling step-parent (just think back to the Cinderella story for a chilling example of this).

Finally, if you are a single parent and have concerns not only about guardianship, but also about your ex-spouse or the other parent of your children handling the assets you will leave to your kids, I encourage you to meet with our Marietta Georgia guardianship lawyer right away so you can protect those funds and make sure they are used only for your children's care, if you are no longer there to raise them. 

Steve Worrall

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