Virtually all parents of young children should have made a choice about who would raise the children in the event of the parents’ death. Usually that preference is indicated in a will, and in many states (Arizona included) such a designation is almost automatically effective. Parents do need to know, however, that a court decision about the child’s best interests can override the parental selection.

The tragic family story of Stephen and Sara Sherwood from Colorado demonstrates the legal issues. Just nine days after he returned from active duty in Iraq, Stephen Sherwood shot and killed his wife and then turned his gun on himself. He left the couple’s daughter (identified only as RMS in the court proceedings) an orphan.

Authorities placed the child with Mrs. Sherwood’s sister Ginny Villers and her husband. Mr. and Mrs. Villers then filed a petition to be appointed guardians.

Stephen Sherwood’s will, however, named his mother Kathleen Nance as guardian if it ever became necessary to appoint one. She objected to appointment of the aunt and uncle, and insisted that her son’s will should control, since he was the last parent to die. The local court agreed, ruling that the only way to overcome the appointment of a guardian in a deceased parent’s will is to show that there would be actual danger or harm to the child. In the absence of any such evidence, the court ordered that Ms. Nance be given custody of her granddaughter.

The Colorado Supreme Court disagreed. The justices noted that Mr. and Mrs. Villers had care and custody of their niece, and that the guardianship statute required that they be given notice of any proceeding to effect the appointment of a guardian. Once they objected, the court’s purpose should be to determine what would be in the child’s best interests, and not necessarily to follow the parents’ decision without review. The high court sent the guardianship case back to the probate court for further hearings to determine which placement would be in RMS’ best interests. In the Matter of RMS, February 13, 2006.

Arizona’s law on designating a guardian for minor children is almost identical to Colorado’s; both come from the Uniform Probate Code, first adopted in Arizona in 1974. It is reasonable to expect that the same result would occur in similar facts in Arizona.

Does that mean that there is no point in naming a guardian for your minor children? Absolutely not. In most cases a will’s provisions will be followed without controversy, and the process is much easier with what a “testamentary appointment.” But parents should appreciate that circumstances after their deaths might change what appears to be in their child’s best interests, and that the courts will make the final decision.

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