Aurora, CO asked in Estate Planning, Family Law and Child Custody for Colorado

Q: When creating a will do I have the right to state that I don’t want my minor child around certain people till age 18

My child’s paternal grandmother is a addict and a child abuser and is not allowed around or alone with my child until he turns 18 preferably 21 years old

1 Lawyer Answer
Rebecca Pescador
Rebecca Pescador
  • Divorce Lawyer
  • Westminster, CO
  • Licensed in Colorado

A: The answer to this is essentially a 2 part answer.

First, yes, you absolutely have the right to express that in your Will. There is broad freedom to include things in your Will. That includes statements about who you prefer to finish raising your minor child, conditions around any inheritance left for that child, and expressions regarding people whom you do or do not want to have contact with your child.

The second part is to understand how that may play out. The language in your Will doesn't create anything that would be absolute in court. It creates a presumption. If you want to try to ensure that it is followed, one part would be to choose someone to finish raising your minor child who understands your reasons for wanting to withhold contact, someone who would be very likely to honor your wishes. If they don't, it's not like there will be someone watching over to report them, and even if they were reported, there's nothing the court can do about it. It will be up to who you choose to honor those wishes. It may also be helpful to leave some instructions (these could be separate, not necessarily included in the Will) describing under what circumstances supervised contact might be ok, or contact in public. If grandmother got clean and could prove she was staying clean, would that make something like meeting up for dinner ok? Would that make phone or electronic contact ok? These are the kinds of questions you would want to answer there.

Including language in your Will addressing who you want to finish raising your child and how you want them raised is always an excellent idea, as is including anyone you feel strongly about not being involved in raising your child. After a parent passes away, the other parent is generally first in line to finish raising the child, and won't be interfered with unless there is sufficient reason. If the other parent has also passed away, or can't be located or hasn't been involved with the child for a long time, then the court has to appoint a legal guardian for the child. If the parent's Will names someone, that is treated by the court as a nomination. The court is not bound by that choice, but will give significant weight to that choice, and if the chosen person(s) is willing and there are no clear reasons to think they are not fit, the court will generally honor that choice. Others may come forward and ask to be named as the guardian, and the court can consider them. If your Will says grandmother is to have no contact with the child, and grandmother comes to court wanting to be the guardian, the court is not bound by your Will, but there would need to be significant proof offered to convince the court why that should not be honored.

An experienced estate planning attorney can help you draft your Will to include these wishes around paternal grandmother having no contact, as well as any other wishes you may have. With an issue like this, it is definitely best to obtain the assistance of an attorney. Online do-it-yourself forms address cookie cutting things adequately, but are generally very poor at addressing specific issues.

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