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In case both parents die before the child reaches the age of majority, and BOTH of them leave the wills with identical wording about guardianship wishes; that explicitly name the same set of grandparents as guardians, and the designated guardians are clearly fit for guardianship (e.g. medically and mentally healthy, own their own house and have comfortable financial situation, have good relationship with the kids and the kids themselves would want to remain with them, and no other obvious signs of un-fitness); can the other set of grandparents meaningfully contest the guardianship merely "because we are also grandparents"?

(I understand that in US, anyone can always contest anything if they feel like it, so "meaningfully" in this case means that the challenge to the will has any chance of being successful).

Furthermore, in case it matters, the will clearly names the second set of grandparents as backup guardians, and explains why the first set was chosen (geographic proximity to where the kids grew up, as opposed to second set living far away); and clearly spells a request for the second set of grandparents to have reasonable visitation rights.

  • Just to be clear, "no obvious signs of un-fitness" is meant as "obvious to a family court", not "obvious to the person asking the question". – DVK Nov 11 '16 at 10:57
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Short answer, no. This gives a summary of custody and visitation law by state (a bit skimpy on the guardianship after death question). The parents have clearly stated their wishes, have even explained the basis, so given your representation of the situation, there would be no reason to overturn that decision. "We're grandparents too" cuts both ways, and doesn't give one set superior rights.

Slightly longer version: the disposition of minor children is based on the interests of the child. The defeasible presumption is that the parents can best judge the interests of the child, and considerable deference is given to that judgment. Including a rationale in the will supports the conclusion that the parents are indeed acting reasonably. The child would have an interest in remaining connected to both grandparents, and faced with the necessity of making a choice, the "A first, then B" indicators in the will clearly show that the parents understand those interests. OTOH if the will said "But absolutely never let B have the child", and failed to say why, then a court could reasonably wonder about the parents' judgment.

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  • This answers the question, but could you expand some? Where is the line? What if the primaries aren't grandparents? What if they're not even relatives? What if there is no explanation given? – Patrick87 Nov 11 '16 at 17:06
  • There are no bright lines when it comes to children. I'd say that the situation presented is of the type "That's how you should do it", and if you start changing variables, then maybe an alternative outcome is possible. E.g. what if in addition the selected grandfather is a convicted murder? What if it's second cousin vs. grandparent? And so on. The concept "best interests of the child" is what controls, and I don't think there is a legal theory of what that concretely means. – user6726 Nov 11 '16 at 17:55
  • Okay, I have an alternative interpretation of your comment. – user6726 Nov 11 '16 at 18:12
  • Often the presumption in favor of the parent's choice once a contest is commenced is quite thin and mostly a matter of evidence and tradition rather than an actual full fledged legal presumption. – ohwilleke Nov 11 '16 at 18:57
  • The link on grandparent visitation is a different issue than a contest to the appointment of the nominees of the parents as guardians. Visitation is a separate issue from guardianship. – ohwilleke Nov 11 '16 at 19:31
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Caveat: State Law Governs

Guardianship of minors is a matter of state law and varies somewhat from state to state although there aren't huge interstate differences on most issue in the formal statutes other than fairly subtle issues of burden of proof. Case law and local sensibilities can greatly influence how the overarching best interests of the child standard is applied.

Overview and Analysis

It would be an uphill battle for a contesting set of grandparents to overcome a set of grandparents nominated by the parents, but a meaningful contest could be brought by contesting grandparents.

While a guardianship appointment made by both parents is presumptively valid and usually has the first priority, no decision made by a parent with respect to a child is ever binding on a court resolving custody and guardianship issues related to children.

The court would consider arguments about who would be the better parent on the merits and would not have to find that the grandparents nominated by the parents were actually "unfit" under most state's laws.

Instead, usually the bottom line decision would be the "best interests of the child" but the parents' wishes would be given great weight which would be hard to overcome in making that determination.

Under one of the leading case in Colorado on the relevant standard, the best interest of the child standard applies when a court must appoint a guardian for a minor when a person with the care or custody of the child objects to a testamentary appointment. The testamentary nomination, while one of many factors to consider, shall not be considered binding where the trial court determines that a party with the care or custody of the minor is better suited to act as permanent guardian. In re R.M.S., 128 P.3d 783 (Colo. 2006). In that case, which I quote at length because it is directly on point on the relevant legal issue the Colorado Supreme Court said:

Petitioners, Ginny Villers and William Brian Villers (collectively, "the Villers"), . . . seek[] to vacate the trial court's order awarding guardianship of R.M.S., a minor, to Respondent, Kathleen Nace, after the deaths of R.M.S.'s parents, Sara Sherwood and Stephen Sherwood. The trial court enforced the terms of Stephen Sherwood's will, which appointed Nace guardian for R.M.S., based on its legal conclusion that a court can set aside a valid testamentary appointment only to avoid potential harm or injury to the minor. The Villers, as persons with the care and custody of R.M.S., objected to the testamentary appointment and seek a new order appointing a guardian for R.M.S. pursuant to the best interest of the child standard.

Facts and Proceedings

On the afternoon of August 3, 2005, Larimer County law enforcement officials responded to a 911 call reporting sounds of gunfire in the home of Sara and Stephen Sherwood. Upon entry, officials discovered the Sherwoods' bodies. Nine days after returning from active combat duty in Iraq, Stephen Sherwood shot and killed his wife, Sara Sherwood, and then killed himself.

The Sherwoods' daughter, R.M.S., was at a neighbor's home during > the shootings. Authorities subsequently placed R.M.S. in the care of Ginny Villers, Sara Sherwood's sister, and Ginny Villers' husband, William Brian Villers. R.M.S. has remained in the Villers' care and custody since the deaths of her parents.

On August 8, 2005, the Villers filed an emergency petition for the appointment of a guardian for R.M.S. The petition asserted that all parental rights had been terminated by death and the Villers were interested persons with the current care of R.M.S. The petition further asserted it was necessary to appoint a temporary and emergency guardian for R.M.S. until a hearing could be held on the petition because an immediate need existed and the appointment of a temporary guardian was in the best interest of R.M.S.

Seven days later, Kathleen Taylor Nace, Stephen Sherwood's mother, petitioned for appointment of guardianship on the basis that she was appointed by the will of the last parent to die, Stephen Sherwood, and the appointment had not been prevented or terminated . . .

The Villers objected to Nace's petition for the appointment of guardian and advanced a best interest of the child standard to the guardianship determination. Under this standard, the Villers argued it would be in R.M.S.'s best interest to remain in their care and custody.

After a hearing on both guardianship petitions, the trial court entered an oral ruling appointing Nace guardian of R.M.S. The trial court concluded the relevant statute, while providing a court some degree of discretion in determining the appointment of a guardian, did not provide it with the discretion to employ a "best interests of the child standard." The court instead applied a harm standard: it concluded Stephen Sherwood's will controlled the guardianship appointment unless "the appointment causes harm or injury " to R.M.S. Because Nace was willing to accept the appointment and the court could not find any indication that such an appointment would cause harm or injury to R.M.S., the court granted Nace's petition and denied the Villers' emergency petition. The trial court noted, however, that if it had applied a best interest standard, it might have appointed the Villers as R.M.S.'s guardian. The trial court stayed removal of R.M.S. . . .

II. Analysis

Sections 15-14-201 to -210, C.R.S. (2005), of the Colorado Probate Code govern the appointment of guardians. . . .

To determine the issue Before us--whether an objection under section 15-14-203(1) to a parental appointment requires judicial appointment of a guardian determined on the best interest of the child standard. . . . We first discuss uncontested testamentary appointments made under section 15-14-202 and note that a court's role is limited to confirming the appointment. Next, we consider objections to parental appointments under section 15-14-203(1) and conclude an objection triggers the judicial appointment statute. We then discuss judicial appointments made under section 15-14-204, C.R.S. (2005), and observe that the legislature has clearly conditioned all judicial appointments on the minor's best interests. Finally, we conclude that a judicial appointment, made subsequent to an objection to a testamentary appointment, is to be made pursuant to the best interest of the child standard.

A. Testamentary Appointment of a Guardian

Section 15-14-202 confers authority on a parent to appoint a guardian by will or other signed writing: "a guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future." § 15-14-202(1), C.R.S. (2005); see also § 15-14-201. . . .

A testamentary appointment is generally effective upon the death of the appointing parent: . . .

In addition to petitioning the court for confirmation of a testamentary appointment, the appointee must file an acceptance of the appointment and "[g]ive written notice of the acceptance to ... a person other than the parent or guardian having care and custody of the minor." § 15-14-202(4)(b), C.R.S. (2005). In this regard, the notice provisions contained in section 15-14-202 make clear that the legislature considered the person with the care or custody of the minor significant to the guardianship confirmation and appointment process. For example, whether a court confirms a testamentary appointment Before or after the appointment is effective, a petitioner must give notice of a guardianship hearing to "[a]ny person alleged to have had the primary care and custody of the minor during the sixty days Before the filing of the petition." § 15-14-205(1)(b), C.R.S. (2005) . . . .

B. Objection to a Testamentary Appointment

Section 15-14-203(1) addresses objections by others to a parental appointment. By statute, an objection may be filed only by the other parent or, as relevant here, "a person other than a parent or guardian having care or custody of the minor," § 15-14-203(1) (emphasis added). Significantly, an objection under section 15-14-203(1) to a testamentary appointee terminates, and may prevent, the appointment: . . . . Once a person with the care or custody of the minor terminates the testamentary appointment by objection, the parental appointment is ineffective and the appointee has no authority. See § 15-14-202(9); § 15-14-203(1). Since the testamentary appointee has no authority, no guardian exists for the minor and a guardian must be appointed by a mechanism other than the testamentary appointment. See id.

We conclude it is plain in subsection 15-14-203(1) that an objection triggers a judicial appointment under section 15-14-204. Section 15-14-203(1) specifies a trial court's involvement in the appointment process upon objection by providing that an objection does not prevent a court from appointing the testamentary appointee: . . . .Likewise, section 15-14-203(1) also anticipates court involvement in the appointment process subsequent to objection by permitting the court to treat an objection as a petition for a temporary guardian under the judicial appointment statute: . . . . In noting that a court may still appoint the testamentary guardian or treat an objection as a petition for the appointment of a temporary guardian, the legislature plainly identified the judicial appointment procedures under section 15-14-204 as the mechanism to resolve a guardianship dispute between a testamentary appointee and a person with the care or custody of the minor involved.

Thus, an objection under section 15-14-203(1) has two interrelated effects on a parental appointment: (1) it terminates and may prevent the appointment; and (2) requires judicial appointment of a guardian. The parties agree that an objection to a parental appointment triggers a court's involvement in the guardianship process beyond confirmation, but disagree as to the scope of the involvement. The Villers argue a guardian must be judicially appointed pursuant to a best interest of the child standard. Nace asserts a valid testamentary nomination pursuant to section 15-14-202 removes all discretion from the trial court and requires the trial court to enforce the terms of the will unless such an appointment would cause harm or injury to the child. We agree with the Villers and conclude that an objection triggers the judicial appointment statute's best interest standard, to which we now turn.

C. Conditions for the Judicial Appointment of a Guardian

Section 15-14-204 conditions the judicial appointment of a guardian on a finding that the appointment will be in the minor's best interest. Under section 15-14-204(2), the best interest of the child is the overriding requirement governing judicial appointments: . . .

Consistent with the conditions for appointment set forth in section 15-14-204, the procedures for the judicial appointment of a guardian also impose a best interest of the child standard. Section 15-14-205(2) provides: "The court, upon hearing, shall make the appointment if it finds that ... the best interest of the minor will be served by the appointment" . . .

The legislature thus made clear that the paramount consideration > in appointing a guardian is the best interest of the minor. In fact, no mention of a standard other than the best interest of the child is made in section 15-14-204. We see no reason to deviate from the best interest standard when the judicial appointment is made subsequent to an objection to a testamentary appointment.

We therefore decline to employ the harm standard advanced by Nace and adopted by the trial court. Indeed, applying a harm standard would require us to read language into the statute. The judicial appointment statute makes no mention of a harm standard and does not direct that a trial court, in making its appointment, should apply any standard other than the best interests of the child, the standard that applies to all judicial appointments. Nor does the judicial appointment statute identify any exceptions for a judicial appointment made subsequent to an objection by a person with the care or custody of the minor. Had the legislature intended a court to appoint a guardian pursuant to a harm standard, it could have so stated. See In re E.L.M.C., 100 P.3d 546, 555 (Colo.App.2004). Instead, the statute repeatedly provides a consistent standard by which to make a judicial appointment: the best interest of the child. Hence, when the trial court has jurisdiction over appointment of a guardian, its responsibility is to provide for the best interest and welfare of the minor.

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.

Parental intent as to who should care for their minor children may nonetheless be a relevant factor to be considered in appointing a guardian under the best interest standard. A court may consider all relevant facts and circumstances to determine the best interest of the child. See Rayer v. Rayer, 32 Colo.App. 400, 403, 512 P.2d 637, 639 (1973); Bd. of Educ. of Sch. Dist. No. 1 v. Booth, 984 P.2d 639, 651 (Colo.1999) (citing § 14-10-124, 5 C.R.S. (1998)). Hence, the best interest of the child standard does not preclude a court from considering the desires of the pertinent parties, including the wishes of the minor's parent as expressed through a testamentary appointment. Thus, a court may weigh such wishes, keeping in mind the fluid and changing nature of interpersonal relationships and the frequency with which the will was reviewed after its election.

However, 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 under section 15-14-203(1). Accordingly, to appoint a guardian for a minor when a person with the care or custody of the child objects to the testamentary appointment, the court shall appoint a guardian under section 15-14-204 pursuant to the best interest of the child standard.

III. Application

Here, Stephen Sherwood effected a valid will appointing Nace as R.M.S.'s testamentary guardian. Although Nace accepted the testamentary appointment, the timely objection of the Villers, as persons with the care and custody of R.M.S. terminated Nace's appointment. Consequently, the court must make a judicial appointment of a guardian for R.M.S. pursuant to the best interest of the child standard.

In Colorado, only a guardian approved by a minor over the age of twelve faces has the benefit of the higher standard of proof of requiring contestants to show that another appointment would be "contrary to the best interests of the minor." In all other cases, every would be guardian has an almost equal duty to show "best interests of the child" with the nomination serving merely as one piece of evidence demonstrating that this is the case.

Note also that grandparent status or even blood relation status is basically irrelevant to guardianship determinations. Any "person interested in the welfare of a minor" is on basically an equal footing (they must be 21 year old as well), with the exception of a parent whose parental rights have been previously terminated for neglect or abuse (who is strongly disfavored).

Many states, including Colorado, do have custody law provisions that allow grandparents to seek visitation of a child because they are grandparents, but that would be a limited visitation right and not a full or even limited guardianship right. The guardian would stand in a similar position vis-a-vis a grandparental visitation request as a parent would while a parent was living.

The Statutory Provisions In Uniform Probate Code States

The relevant provisions of Colorado law from the Colorado Revised Statutes (2016) (which are based upon the Uniform Probate Code and are typical of the more modern rules) on this subject read as follows (with the key provisions highlighted).

§ 15-14-202. Testamentary appointment of guardian - appointment by written instrument

(1) A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. A guardian may also be appointed by will or other signed writing by a guardian of a minor child. The appointment may specify the desired limitations on the powers to be given to the guardian. A guardian may not appoint a surviving parent who has no parental rights to be a successor guardian. The appointing parent or guardian may revoke or amend the appointment before confirmation by the court.

(2) Upon petition of an appointing parent or guardian and a finding that the appointing parent or guardian will likely become unable to care for the child within two years, and after notice as provided in section 15-14-205(1), the court, before the appointment becomes effective, may confirm the selection of a guardian by a parent or guardian and terminate the rights of others to object. If the minor has attained twelve years of age, the minor must consent to the appointment of a guardian pursuant to section 15-14-203(2).

(3) Subject to section 15-14-203, the appointment of a guardian becomes effective upon the death of the appointing parent or guardian, an adjudication that the parent or guardian is an incapacitated person, or a written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the child, whichever occurs first.

(4) The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within thirty days after the guardian's appointment becomes effective. The guardian shall: (a) File the acceptance of appointment and a copy of the will with the court of the county in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court of the county in which the minor resides or is present; and (b) Give written notice of the acceptance of appointment to the appointing parent or guardian, if living, the minor, if the minor has attained twelve years of age, and a person other than the parent or guardian having care and custody of the minor.

(5) Unless the appointment was previously confirmed by the court, the notice given under paragraph (b) of subsection (4) of this section must include a statement of the right of those notified to terminate the appointment by filing a written objection in the court as provided in section 15-14-203(1) and of the right of a minor who has attained twelve years of age to refuse to consent to the appointment of the guardian as provided in section 15-14-203(2).

(6) Unless the appointment was previously confirmed by the court, within thirty days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment, giving notice in the manner provided in section 15-14-205(1).

(7) The appointment of a guardian by a parent does not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who died or was adjudged incapacitated has priority. If a guardian survives the death or adjudication of incapacity of both parents, an appointment by the last parent or guardian who died or was adjudged incapacitated has priority. An appointment by a parent or guardian which is effected by filing the guardian's acceptance under a will probated in the state of the testator's domicile is effective in this state.

(8) The powers of a guardian who complies timely with the requirements of subsections (4) and (6) of this section relate back to give acts by the guardian which are of benefit to the minor and occurred on or after the date the appointment became effective the same effect as those that occurred after the filing of the acceptance of the appointment.

(9) The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to section 15-14-203(1) or of the refusal of a minor child who has attained the age of twelve years to consent pursuant to section 15-14-203(2).

§ 15-14-203. Objection of others to parental appointment - consent by minor of twelve years of age or older to appointment of guardian

(1) Until the court has confirmed an appointee under section 15-14-202, the other parent, or a person other than a parent or guardian having care or custody of the minor may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment. An objection may be withdrawn, and if withdrawn is of no effect. The objection does not preclude judicial appointment of the person selected by the parent or guardian. The court may treat the filing of an objection or the refusal of the minor to consent as a petition for the appointment of an emergency or a temporary guardian under section 15-14-204, and proceed accordingly.

(2) Until the court has confirmed an appointee under section 15-14-202, a minor who is the subject of an appointment by a parent or guardian and who has attained twelve years of age has the right to consent or refuse to consent to an appointment of a guardian. . . .

§ 15-14-204. Judicial appointment of guardian - conditions for appointment

(1) A minor or a person interested in the welfare of a minor may petition for appointment of a guardian.

(2) The court may appoint a guardian for a minor if the court finds the appointment is in the minor's best interest, and: . . . (b) All parental rights have been terminated; (c) The parents are unwilling or unable to exercise their parental rights . . . ; however, the court shall not presume it is in the best interests of a child to be in the care of a parent in circumstances where a court has previously granted custody of a child to a third party.

(3) If a guardian is appointed by a parent or guardian pursuant to section 15-14-202 and the appointment has not been prevented or terminated under section 15-14-203(1) or the minor has consented to the appointment pursuant to section 15-14-203(2), that appointee has priority for appointment. However, the court may proceed with another appointment upon a finding that the appointee under section 15-14-202 has failed to accept the appointment within thirty days after notice of the guardianship proceeding. . . .

(5) If the court finds that following the procedures of this part 2 will likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor. The duration of the emergency guardian's authority may not exceed sixty days and the emergency guardian may exercise only the powers specified in the order. . . .

§ 15-14-205. Judicial appointment of guardian - procedure

(1) After a petition for appointment of a guardian is filed, the > court shall schedule a hearing, and the petitioner shall give notice of the time and place of the hearing, together with a copy of the petition, to: (a) The minor, if the minor has attained twelve years of age and is not the petitioner; (b) Any person alleged to have had the primary care and custody of the minor during the sixty days before the filing of the petition; (c) Each living parent of the minor or, if there is none, the adult nearest in kinship that can be found; (d) Any person nominated as guardian by the minor if the minor has attained twelve years of age; (e) Any appointee of a parent or guardian whose appointment has not been prevented or terminated under section 15-14-203(1) or whose appointment was consented to under section 15-14-203(2) ; and (f) Any guardian or conservator currently acting for the minor in this state or elsewhere.

(2) The court, upon hearing, shall make the appointment if it finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the conditions of section 15-14-204(2) have been met, and the best interest of the minor will be served by the appointment. In other cases, the court may dismiss the proceeding or make any other disposition of the matter that will serve the best interest of the minor. . . .

§ 15-14-206. Judicial appointment of guardian - priority of minor's nominee - limited guardianship

(1) The court shall appoint a guardian whose appointment will be in the best interest of the minor. The court shall appoint a guardian nominated by the minor, if the minor has attained twelve years of age, unless the court finds the appointment will be contrary to the best interest of the minor. . . . .

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  • It will take me a while to go through the whole extensive answer, but +1 for sheer effort even now. One question (not directly related) - you state that being a grandparent is irrelevant - but doesn't the blood status enter "best interest of the child" guidelines on the account that a grandparent, ceterus parabus, is more likely to exibit better care of a minor than anyone else due to blood relation being so close? – DVK Nov 11 '16 at 20:43
  • I'll try to edit later :) (Update 1 minute later: DONE. There are benefits to being a software developer :) - the edit will take effect once it's reviewed in edit review queue. – DVK Nov 11 '16 at 20:44
  • @DVK. Generally speaking a blood relationship in and of itself would be irrelevant. For example, my brother's daughter was born after her biological grandmother died and now has no living paternal grandparents, but has a grandparent-like relationship with the second wife of the biological grandfather (my brother's stepmother) during her marriage to the grandfather. The step-grandmother would be at no disadvantage merely as a result of a lack of a blood relationship. Under "best interests of the child", the relationship in fact, rather than presumed relationship from status is controlling. – ohwilleke Nov 11 '16 at 20:50
  • ohwilleke - I meant "ceterus parabus", implying that, if there's a relationship in fact, it's identical between both contesting parties. E.g. a child is equally cared for by both, is equally attached, spent equal time with both, etc... (I admit that it's an unlikely situation to occur in real life, but i'm interested in legal principal here, not reality :) – DVK Nov 11 '16 at 20:56
  • In legal principle they are equal, ceterus parabus. Non-parent blood relationships, per se, are not a recognized plus factor (except for Native American children). Similarly, a step sibling would not automatically be at a disadvantage vis a blood sibling. (More remarkably, this is also true in Colorado in ordinary custody cases between anyone with standing to seek custody; a baby sitter with the current care and custody of kids is on equal footing with a parent under the statute although the facts rarely would make them ceterus parabus in fact.) – ohwilleke Nov 11 '16 at 21:00

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