When preparing a Parenting Agreement, a court-enforceable agreement that sets forth terms of care and custody related children, parents like to provide for every eventuality, including death. Often, that involves providing that each parent will provide a life insurance policy securing child support obligations. Sometimes, parents also provide that in the event of the parents’ death, a particular relative or friend shall be appointed guardian of the child or children.
Parties typically only agree to do this in the event of both parents’ death. It is critical that parents recognize that such a clause in a parenting agreement and custody judgment does not compel the court to award guardianship to the named person person. Even if both parents agree, acknowledgment in a parenting agreement and custody judgment alone will not enforce guardianship of a child. If appointment of a guardian is the desire of both parents, they should contact an experienced probate attorney and properly execute a will to enforce such a provision.
Nevertheless, one parent’s unilaterally stipulation in a will that, for example, his mother become the guardian of a child when the other parent is living will not automatically take effect. A judge would still have to make a determination that the living parent is unfit before displacing the parent as a legal guardian.