Making a Will as a Custodial Parent


After filing for divorce in Pasadena, it's important to revisit your estate planning. A will you made while you were happily married is likely to have many provisions that no longer apply after your divorce. This is especially true if you are given custody of your children after the divorce.

Typically, custody of children goes to the surviving parent after the custodial parent's death. But the best interest of the child always take precedence.

If you feel that your ex is not equipped to be the guardian of your child, you can name an alternate guardian in your will. Reasons why an alternate guardian might be appropriate include:

  • Alcoholism
  • Drug addiction
  • History of abuse
  • Mental illness

The court is not obligated to honor your request, but your wishes will be considered.

Aside from the surviving parent's ability to properly care for the child, the court will also consider if he or she has a current relationship with the child. If the surviving parent has not seen the child in several years and the child currently enjoys a positive relationship with the deceased custodial parent's requested guardian, the court may very well decide that allowing the surviving parent to assume custody is not in the child's best interests.

If your ex has had his/her parental rights terminated by the court, or your current spouse has adopted your child, there is no custody issue to consider. In both cases, your ex would have no legal standing to assume custody of your child in the event of your death.

Many people try to save money by completing online will forms. However, the do-it-yourself approach is not appropriate if there is a child custody issue involved. If you are concerned about who would be given custody of your child in the event of your death, you need to speak to an experienced estate planning attorney who can help you construct your will.

How Can We Help?

Please call our office at (626) 683-8113 or email us at if you have questions about how to best ensure that your children are cared for after your divorce. Our Pasadena family law firm has extensive experience handling child custody, child support, and visitation concerns.