Parents in an intact family should designate in each of their wills a guardian for their children in the event of both of their untimely deaths in a common accident.
As soon as their first child is born. If not sooner. No matter the parents’ ages or current health statuses.
The above almost goes without saying.
Otherwise, guardianship must be decided by courts, with a large potential cost and delay, at the children’s ultimate expense. The children could wind up in foster care while the courts are sorting things out.
Once parents split up, each parent should revisit their earlier designations of guardians for their children.
Whether through the passage of time or changes in feelings related to the breakup, either parent (or both) may no longer be comfortable with their original designations.
Generally, both parents must agree on the designation. Not necessarily so easy, at a time when the parents may not be able to agree on blue skies or grey.
Even more difficult, once both parents split up, each parent should now consider the possibility of the death of either parent alone.
Normally, if one parent dies, the other parent will assume sole custody of the children, unless the surviving parent is obviously unfit.
There may be legitimate reasons, however, why one parent would not want the other parent to raise their children alone in the event of his or her own death.
It is also possible that the other parent would be fine at raising the children … but terrible at handling their finances and/or inheritance.
The law allows for guardianship of children to be separated into guardianship of their person and guardianship of their property. With this division of “labor”, a different person can be designated guardian of the children’s property from the person who is designated as guardian of the children’s persons.
While either parent’s designation (or, for that matter, the designation of both) is not legally binding on the court, it is certainly worthwhile for a parent to fully express to the court in writing their feelings on guardianship of their children and their supporting reasons.
It can focus the court’s attention on potential concerns with the other parent or other pre-designated guardians.