Tuesday, February 14, 2006

Case Law Developments: Best Interests Test Applied in Contested Testamentary Appointment of Guardian

In a tragic case in which Father, shortly after returning from active military combat in Iraq, shot and killed Mother and then himself, the trial court was faced with competing claims for guardianship of the daughter.  Shortly after the deaths, daughter was placed with her maternal aunt and uncle, who petitioned for guardianship.  Paternal grandmother also petitioned, as she had been designated by Father’s will as the guardian.  The trial court found that, absent a showing of harm to the child, it was required to approve the testamentary guardianship.  The Supreme Court of Colorado reversed, holding that the proper test in such circumstances is the best interest of the child.

In re R.M.S., a child, 2006 Colo. LEXIS 144  (February 13, 2006)
Opinion on the web (last visited February 13, 2006 bgf)

“Although we recognize the strong public policy in favor of encouraging parents to make testamentary selections in the first instance, we conclude the legislature did not intend to preclude the court from considering the best interests of the child who has been in the care or custody of persons other than the testamentary guardian. Hence, the testamentary nomination is not binding where the trial court determines in its sound discretion that a party with the care or custody of the minor is better suited to act as guardian.  …the paramount consideration is the best interest of the child and a testamentary appointment must yield to this overriding concern when the court resolves a guardianship dispute subsequent to an objection by a person with the care or custody of the minor….”

http://lawprofessors.typepad.com/family_law/2006/02/case_law_develo_15.html

Custody (parenting plans) | Permalink

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