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
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. . . .
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
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
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.
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
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
(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
(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
(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
(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. . . . .