Can You Exclude Your Ex-Spouse as the Guardian for Your Children After Separation/Divorce in Your Will/Trust?

HNWElder Law, Estate Planning, Guardianship Law

A client was referred to me by another attorney. She was the victim of domestic abuse and is currently in the process of getting divorced. She wants to prevent her husband from gaining custody of her children should she pass away. Her divorce attorney advised her that the father would have parental rights in the event of her death, regardless of what her Will says and that she would be wise to obtain a court order regarding same as part of her divorce. I was asked for my opinion.

There is a reported New Jersey Supreme Court decision Watkins v. Nelson, 163 N.J. 235 (2000), which held that disputes regarding child custody should be settled in favor of the natural parents unless the third party is a “psychologically parent,” a biological parent is unfit, or if exceptional circumstances exist. There is a presumption of custody in favor of the parent. While the mother can name her choice for guardian in her Will, the strong legal presumption is that the father will get custody unless he is unfit.

That said, the client was advised to name other people as guardians if the father is deemed unfit so a guardianship fight can be avoided or minimized. Naming successive contingent guardians for minor children is a smart move. Another smart move would be to also mention in the Will, that (God forbid) if her children pre-decease the father, that their money goes to someone other than the father. Believe it or not, without a trust in place, if a child died after receiving mom’s inheritance, the father would receive the child’s share under the law of inherited succession. Therefore, if she really wants to cut out the dad as a possible heir of the kids, she needs to leave the kid’s shares in trusts that last at least until the kids are much older or better yet have descendants of their own.

To discuss your NJ Guardianship and Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship and Estate Planning Attorney


Previous PostNext Post