Question about wills and putting custody of your children in it.?

Question

My ex swears that it is illegal to name a gardian for your children in a will because it is considered slavery. I know that this is completely, retardedly, false. However, he will not believe me unless I have an answer that is credible. I am from Minnesota. He says that this includes several states. I have tried to research this matter several times on the internet but to no avail. I want to name a gardian for our daughter in my will. I think he is just trying to scare me into not going through with it though. What do you think?

My problem is that my ex believes stupid things people tell him and in his mind they are facts. I consider myself to be an educated person and in my mind they are hearsay until proven correct or incorrect. I just live for proving the retarded things that he says wrong.

Engineer,
I have full legal and physical custody of our daughter right now but if anything happens to me, I want to name a guardian other than my ex for my daughter. If anything happens to me, he wants custody of her. I want her to either stay were she is with my current husband and my other children, or I want her to live with my mother. She would be in the same school district and area either way. If she goes to live with her father, she would go to live in Wisconsin and he cares nothing for her future or a college education. He has asked me why I even talk to her about college because he never went to college and he is perfectly happy with his job. I want my daughter to go to college, get a good job, and be successful.

Answer 1

You can name a guardian of the person of your child in your will. The court will generally honor the appointment of such guardian. The law of the state where you live will govern, although the laws of all 50 states are similar.

Your ex-husband is misinformed.

You should make a determination of whom you want to be guardian of your child or children -- you may consider your sister a good candidate, or somebody with whom you may be close such as a cousin or friend from church -- talk to them about it. NEXT STEP IS TO GO TO YOUR LAWYER TO HAVE A WILL PREPARED TO CARRY OUT YOUR WISHES.

Answer 2

Your ex is nuts. If you don't name a guardian, the state will do it for you. See an attorney right away.

Answer 3

A guardian of the person and a guardian of the property of a person have different duties and powers.[FN9] More specifically, a guardian of the person is one who has been lawfully invested with the care of the person of a minor.[FN10] The guardian is considered as standing in the place of the minor's parent,[FN11] and his or her authority is derived out of that of the parent.[FN12] On the other hand, a guardian of the estate or property of a minor,[FN13] who is sometimes termed a curator,[FN14] is one who is entrusted with the control of a minor's property, but is not a guardian of the person.[FN15]
39 C.J.S. Guardian & Ward § 3
Corpus Juris Secundum
Database updated December 2007
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M.S.A. § 524.5-207

Minnesota Statutes Annotated Currentness
Estates of Decedents; Guardianships (Ch. 524-529)
Chapter 524. Uniform Probate Code (Refs & Annos)
Article 5. Uniform Guardianship and Protective Proceedings Act
Part 2. Guardian of Minor
>>524.5-207. Powers and duties of guardian

Subdivision 1. General statement. A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the minor and unemancipated child, except that a guardian is not legally obligated to provide from the guardian's own funds for the ward.

Subd. 2. Particular duties. In particular, and without qualifying subdivision 1, a guardian has the duties and powers in this subdivision.

(a) The guardian must take reasonable care of the ward's personal effects and commence protective proceedings if necessary to protect other property of the ward.
(b) The guardian may receive money payable for the support of the ward to the ward's parent, guardian, or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship, or custodianship and also may receive money or property of the ward paid or delivered by virtue of section 524.5-104. Any sums received must be applied to the ward's current needs for support, care, and education.

The guardian must exercise due care to conserve any excess for the ward's future needs unless a conservator has been appointed for the estate of the ward, in which case the excess must be paid at least annually to the conservator. Money received by the guardian under this paragraph must not be used for compensation for the guardian's services except as approved by court order or as determined by a duly appointed conservator other than the guardian.

A guardian may institute proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward.

(c) The guardian is empowered to facilitate the ward's education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A ward who is less than 16 years of age may be admitted to a treatment facility as an informal patient according to section 253B.04 but may not be committed to any state institution except pursuant to chapter 253B. No guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by the order of the court, after a hearing as prescribed by section 524.5-313, paragraph (c), clause (4). A guardian is not liable by reason of consent for injury to the ward resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented, or unless the guardian fails to comply with the requirements of this section which provide that a court order is necessary for commitment and for certain types of medical procedures. A guardian may consent to the marriage or adoption of the ward.


(d) A guardian must report the condition of the ward and of the ward's estate which has been subject to the guardian's possession or control, as ordered by the court on its own motion or on petition of any interested person and as required by court rule.
(e) If there is no acting conservator of the estate for the ward, the guardian has the power to apply on behalf of the ward for any assistance, services, or benefits available to the ward through any unit of government.

EDIT:
What I just cited to you above happens to be the law of Minnesota regarding guardianships. If you're looking for facts or proof, then here it is. Why don't you print it out and show it to him.

EDIT:
From your questions it is obvious that your ex husband has not had his parental rights terminated. This means he has certain constitutional rights in the care custody and control of the child. You therefore have somewhat of an uphill battle. You can ask for a guardian in your will but your ex will obviously fight it. The Court will always make the determination of what is in the best interests of the child. In some jurisdictions, the law assumes that the biological parent having custody is in the child's best interests. Your best bet would be to get as many family members as you can on board. The bottom line is simply because you presently have custody (legal and physical) does not mean you make a determination as to who cares for minor the child upon your death.
One point he properly makes as to the slavery issue is that parents can NEVER contract in a settlement or separation agreement or execute a will or trust wherein they have the power to determine what happens to a child without some Court oversight, whether it be a family judge or probate. That is why your husband can periodically attempt to modify the custody agreement based on change of circumstances. See M.S.A. § 518.18 modification of order.
Anyway, this is what it is. Good luck.

Answer 4

My husband does not have a will. He says he does not need one. We live in MInnesota. What are the laws on this?

Answer 5

Your ex is misinformed. Doesn't he care enough about his daughter to ensure that she is cared for if something happens to him?