If only one parent becomes deceased, the surviving parent, assuming he/she is fit to raise his/her children and has a relationship with them, will in all likelihood be granted custody of the child(ren), even if a guardianship provision exists in the couple’s will. However, if the surviving parent does not have a relationship with the children, but that parent is fit to care for the children, there may be a legal transitional period to allow for the surviving parent and their children to get acquainted and comfortable with one another.
On the other hand, if the surviving parent is considered “unfit,” but they have a desire to seek custody of their children, there will likely be a hearing on this issue to determine what is in the best interests of the children, which is the Pennsylvania child custody standard of proof. In this situation, the party who believes that the children’s other parent is “unfit” should document specifically why they believe the children’s other parent is unfit and include an explanation as to why they chose a particular guardian for the children. This explanation may persuade a court to follow your stated intent, so long as the circumstances do not substantially change between the time the guardian is nominated and the time when their duties would begin. In the event that the surviving parent does not desire custody of the children or is proven unfit, the guardian designation will likely be honored by the court. Additionally, a unique aspect of Pennsylvania law is that grandparents are allowed legal visitation rights in PA when it is their child who is the deceased parent.
Appointing a guardian for your minor children is an important way to ensure that they will always be cared for by a person of your choosing. If you have questions about the guardianship of minors or about including a provision related to guardianship in your will, contact our Allegheny County Attorneys today to schedule a consultation.