It is critical to appoint a guardian for your minor child. A minor’s guardian is a person who is appointed by a child’s parents to care for that child in the event of their death or incapacity. If it becomes necessary, this person is given all the legal rights of a parent. But who chooses legal guardianship of a minor, particularly if the biological parents are divorced or were never married? Which parent gets to pick the guardian, and does one parent’s wishes overrule the other’s?

Here’s how it works.

Legal Guardianship Is Dependent on the Situation

Both parents have equal rights to choose legal guardianship of a minor child. However, if one parent dies or becomes incapacitated, the child automatically goes to the other biological parent. Guardians do not even enter the picture unless both parents are dead or incapacitated. The only exception to this rule is when a living parent has had their rights revoked by the courts due to issues of abuse or neglect.

If both parents pass away or are incapacitated, the child’s custody is determined by whichever parent named a guardian in their will. However, if BOTH biological parents are gone and they BOTH appointed different legal guardians in their will, the law is unclear. It is likely that it would become a split custody situation between the two different guardians, but that would be something the court system would have to settle.

How To Plan for Legal Guardianship of Your Minor Child

The likelihood of the last scenario happening is slim, but for some divorced or unmarried parents, this can become a very serious issue that they need to plan for. Creating a will and appointing a guardian you trust is key so that if this situation does occur, your chosen guardian will have at least part-time participation and influence in your child’s life.

[Related: 3 Tips for How to Choose a Guardian for Your Child]

Have You Appointed a Legal Guardian for Your Child?

If you have not appointed a legal guardian for your minor child, we encourage you to do so as soon as possible. Schedule an appointment today and let us help you create a will that ensures your child will always receive the care they need.


Joshua E. Hummer, Esq. is a licensed attorney who has been admitted in both Virginia and West Virginia. He is a graduate of the University of Virginia and has been practicing for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law.