Legal Question in Family Law in Maryland

Re: Guardian

You can state in a will your preference regarding guardianship of your minor child in the event of your death, but the court would have the final decision if the surviving parent asserts a right to custody and the person you have named opposes him or her. Unless the other parent of the child is found to be unfit or clearly inappropriate to have custody of the child, the parent, if he wants custody, will be presumed to have the strongest claim. The court will not appoint a guardian unless the person you have named takes it to court and makes a case that it is not in the best interest of the child to be in the custody of the parent. This is usually a tough case to make, unless the parent is clearly unfit or unable to handle the responsibility.

There is one matter concerning the minor child over which you can exert more control after your death. If you are leaving assets to the child, you can, in the will, appoint a guardian of the property to take possession of the property, on behalf of the minor child, and control the property and its use while the child is a minor. In that case, the surviving parent, even if he has full custody of the child, will have no control over the property or access to it beyond what the guardian permits. And that is one thing which the parent could not successfully challenge in court.

Re: Guardian

To have the Court consider your request for custody and guardianship of your children upon your death, you should have an attorney prepare a Last Will & Testament.

Re: Guardian

While you should have a Will designating a guardian in the event of your death, bear in mind that if the other parent is desirous and capable of assuming custody, he/she will have a lot to say about this, especially if he/she maintains active involvement in your child's life. A will remains valid wherever you move if it was in prepared in conformity with the law of your resident jurisdiction.

You should also consider a Power of Attorney to provide a legal mechanism for someone you designate assuming the parental role on a temporary basis in the event of your incapacity.