2.1 Natural Parents Are Guardians
Generally, the natural parents are the guardians of the children.
2.1.1 If the parents are divorced, or never married, the surviving parent will succeed to the role of the custodial parent unless a court proceeding has otherwise terminated his or her natural rights to be the guardian of the child or children. The termination of a natural parent’s rights is a quite different issue than the custody issue in a divorce action.
2.1.2 Parents should provide for a guardian for their minor children in the event that both die. Maryland provides that the surviving parent may appoint by will one or more person or persons as guardian or successor guardians for the minor children. Such an appointment circumvents the necessity of appointment and approval by a court. It also establishes a prima facie right for such a person to be the guardian subject, of course, to a court determining that it would not be in the best interests of the child to have that person so serve. Although there is no Maryland case on point, such an appointment by will is likely to be given great weight in any dispute about who should be the guardian and, of course, in absence of the dispute, will be honored.
Thus, although the Maryland courts ultimately have supervisory capacity regarding children, to the degree there is not a compelling reason to the contrary, the family autonomy will be respected including the power of parents to arrange for the care and supervision of their children after their deaths. Choosing such a guardian, of course, is one of the most difficult decisions a parent can ever make. If the parent designates a couple to serve as guardians, they need to think through who they would want to ultimately be guardian if that couple separated or divorced. If two people are designated who do not live together, then there would be secondary issues as to where the child would live. In addition to a “first line” guardian, it would be prudent to designate at least one person as successor if the primary guardian would die or become incapacitated or refuse to serve. Although it is emotionally very difficult to think about your child being raised by someone other than the parent, it is critical that the parent envision the emotional, life style, and practical aspects of the child living with the designated guardian. It is also important that it be discussed with the people the parent wishes to choose as a guardian so that they may likewise think through the choice. [Below, is discussed our prejudice that the guardian or guardians and the trustees not be totally one and the same so that there is at least some secondary oversight of the money. Additionally, by having the trustee not exactly identical to the guardian (such a guardian may be co-trustee) the parent is bringing another person to the table to oversee the welfare of the child.]
2.1.3 In the mid-1990s, Maryland enacted a standby guardian law which permits a very ill parent to appoint a person to become guardian when that parent becomes so incapacitated that he or she cannot continue to effectively serve as his or her child’s custodial parent. This provision, however, does not permit a custodial parent to attempt to circumvent the other natural parent from becoming guardian at his or her death because it requires any other person with parental rights to either join the petition or to certify that such person cannot be located. This provision does open the opportunity; however, for a very ill parent to name a standby with the consent of a non-involved parent to assure that their guardian appointment is not challenged after their death.