One of the most important reasons young parents create an estate plan is to name a guardian for their minor children in the event that both parents die before the children reach the age of majority. If the parents are divorced, their individual wills may name a guardian who is not the ex-spouse. Who would become the guardian of the children?
Throughout Ohio’s juvenile code, a court is required to make custody decisions based on “the best interest of the child.” In custody hearings between parents and non-parents, Ohio courts have also established a general rule that the child’s best interest is to be cared for by his or her parent. However, parental custody is not in the child’s best interest if, for example, the parent has abandoned the child, is unable to provide support, or is otherwise unsuitable. (See In re Perales, 52 Ohio St. 2d 89 (Ohio 1977))
To determine the child’s best interest and the parent’s suitability, the court would have a number of factors to consider. For example, the court would take into account a divorced mother’s will which names a grandmother as guardian. However, it would also examine the children’s relationship with their father: Does he live nearby or out of state? Is he involved with parenting? Physically violent? The couple’s divorce or custody orders may also provide important information for the court to review.
Bottom line? If you are divorced, it is essential to consult an attorney when making your estate plans to ensure that your wishes regarding your children are best reflected in your estate documents.