In Pennsylvania, as in every state, the purpose of drafting a will is to provide direction to surviving family members regarding what should happen to your personal and real property, and how to care for minor children of the testator. One of the most important aspects of any parent’s will , is the appointment of a guardian of his or her minor child(ren). The appointment of a guardian ensures that the parent is able to select who is best able to provide for his or her child in the event that he or she becomes unable to.
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 likely be granted custody of the child(ren), even if a guardianship provision exists in the couple’s will. In situations where the surviving spouse does not have a relationship with the children, and the deceased parent dies intestate (without a will), a family member who does have a relationship with the child may qualify and have standing to petition the court for legal guardianship of the child.
When a surviving parent is considered “unfit,” or if they do not have a relationship with the child, 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. The party who believes that the children’s other parent is “unfit” must be able to demonstrate to the court why they believe the children’s other parent is unfit. If a 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 guardianship of minors or about including a provision related to guardianship in your will, contact our Allegheny County Attorneys today to schedule a consultation.