Legal Question in Wills and Trusts in New York

Re: Wills - Child Guardianship

A little difficult to answer as cases go both ways. Usually a Will controls, but can be superceded by a Court Order. Thus, while a survivng parent generally has paramount rights to custody, over the wishes of the deceased parent as expressed in the Will, especially if contained in the Court deecision in the matter, other factors may come into play. This would include the wishes of the children (and a Court would consider them, depending upon the ages of the children - the older they are the more the Court will consider their input), where the survivng parent lives, in relationship to where the children were raised (age is a factor here also), relationship of the proposed guardian (family member or non-family member), whether a decision might break up the family, past history (did the deceased spouse possibly brainwash the children) and other similar factors. I should add that situations may change and feelings today could change tomorrow. I suggest trying to work this out, consensually, to avoid the cost and possible trauma to the children, if a custody battle is anticipated.

Re: Wills - Child Guardianship

As usual Walter is correct.

The presumption is that the surviving spouse would be the custodial guardian for the children. However, the Court always looks toward the best interest of the children when making a decision, and this issue may always be revisited by the Court upon a change of circumstance (like a death).

Mike.