Q: I've been divorced for 5 years. My ex-husband and I have joint custody of our children. He stopped paying child support almost 4 years ago, and hasn't contacted me or the children in these 4 years. He's probably out of the country to avoid the authorities. Now, I'm writing my will. Does my ex-husband automatically become the children's guardian in the event of my death? I don't want that to happen. I'd like to appoint a close friend as their guardian. I would leave money aside for her if she needs to battle this in court. -- AA via email
A: Not to worry. From what you say, your ex-husband's chances of being appointed the children's guardian are slim.
Parents may be surprised to learn that guardianship of minor children isn't automatic. This is a court-appointed position -- and although your will is a major factor in the court's decision, that decision is based on the best interests of the child.
In divorce situations, courts do usually name the surviving parent as the guardian -- but not always. A recent celebrity example is Michael Jackson, notes Stephen J. Silverberg, an East Meadow N.Y. estate lawyer: Jackson's will named his mother as his children's guardian, and the court appointed her.
Besides, if your ex has left the country to avoid criminal prosecution, as you imply, no court is likely to consider him a fit person to be responsible for the kids. Indeed, even if there's nothing sinister in his past, his track record as a parent won't recommend him for the job.
Go ahead and name the friend you've chosen as your children's guardian in your will. The legal procedure is that she'll petition the court for the appointment after your death. She'll also have to notify the children's father, to give him an opportunity to object to her appointment. (If he's hard to find, she can ask the court to put out a public notice requesting his appearance.)
What if he shows up and objects to your friend's appointment as guardian? He'll have to convince the court he should be appointed instead -- and that won't be an easy task. "His failure to see the children or pay child support could be viewed as abandonment," says Silverberg.
He recommends that you leave money in trust for your children, naming your friend as the trustee.
"Your trust should have language in it saying that if necessary, the trustee can spend money for legal fees to contest a claim of guardianship by your ex-husband," says Silverberg. "It should also include a provision that in no event shall your ex-husband, or any of his relatives, friends, or associates, serve as the trustee. That provision is completely enforceable."
The role of trustee is distinct and separate from the role of guardian, although of course the same person is often appointed to both jobs. One advantage of making your friend the trustee is that it puts her in charge of the children's money no matter what happens:
Even if your ex-husband a) challenges your choice of guardian, and b) is able to win that appointment for himself, your friend would still have a big voice in the kids' upbringing.
But that worst-case scenario is very unlikely, and not just for legal reasons: As you know, raising children takes enormous energy, devotion, time, and patience. From everything you say about him, your ex-husband will be more than happy to let someone else do the job.
(c) Lynn Brenner, All Rights Reserved