Can I name a guardian in my will so my child's father can't get custody?

Full question:

My son will be six years old on February 25, 2010. I was with his father for the first seventeen months of his life. I had his father legally evicted from my home because he refused to leave. He moved out on or about July 12, 2005. He called one time the following week. I have not heard anything from him since that last phone call in July 2005. I do not receive child support and have never asked for child support. On the birth certificate for father it states 'not listed and my son has my last name (maiden). My son has not spoken or seen his father since July 2005 when he was eighteen months old. During these years, I have lived at the same address, worked at the same company and I have had the same mobile number. He has made no attempt to contact me and I have made no attempt to contact him. I am unmarried. Both of my parents have passed away. I have one brother. If I died today, would my son's father be able to get custody of my son? Would a will stating who I wanted my son to live with in the case of my death protect him from his father gaining custody?

• Category: Divorce
• Subcategory: Child Custody
• Date: 04/07/2025
• State: South Carolina

Answer:

Typically, a parent's rights are not terminated simply due to a lack of contact with the child. Therefore, the death of one parent would usually mean the other parent must take care of the child, if able. A last will and testament cannot affect the parental rights of the other parent.

Since abandonment is often a deciding factor in the process, it may be beneficial to explore the process of terminating the parental rights of the father (a TPR proceeding).

An order terminating parental rights divests the parents and the child of all legal
rights, powers, privileges, immunities, duties and obligations with respect to each
other, except the right of the child to inherit from the parent. The child's right to
inherit from the parent is only terminated by a final order of adoption of the child.
This means that the biological parents have no legal obligation to support their
child or to exercise any rights of visitation once their parental rights are
terminated. They no longer have the right to receive any information about their
child or to know where their child is living. The relationship between a parent and
child may be terminated with respect to one parent without affecting the
relationship between the child and the other as in the case of a stepparent
adoption.

The Department of Social Services or any interested party may file a complaint
seeking termination of parental rights. S.C. Code Ann. §20-7-1564 (Supp. 2002).
Interested parties include parents, foster parents, relatives, stepparents, and
guardians ad litem. In the cases of Hopkins v. South Carolina Department of
Social Services, 437 S.E. 2d 542 (1993) and Joiner v. Rivas et al., 536 S. E. 2d
372 (2002) the guardians ad litem brought the termination of parental rights
action on behalf of the child. In Hooper v. Rockwell, 315 S.E.2d 358 (1999) the
foster parents brought the termination of parental rights and adoption action at
the same time.

In termination of parental rights cases all parties must be served with a copy of
the pleadings. This includes serving the child personally with a copy of all the
pleadings. The child must be appointed a guardian ad litem to represent his best
interest. If the Guardian ad litem is not an attorney, in all contested cases the
Guardian ad Litem will be appointed an attorney. If the guardian ad litem is an
attorney, then an attorney will be appointed on a case-by-case basis. If the
parent’s are determined to be indigent they will be appointed an attorney, unless
they are in default.

In all TPR cases, the family court must decide whether a ground for termination
of parental rights is shown by clear and convincing evidence, and if one ground
exists, whether termination of parental rights would be in the best interest of the
child. S.C. Code Ann. §20-7-1572 (Supp. 2002). The court may order termination
of parental rights, but it is not mandatory. Regarding the court's discretion
whether to terminate parental rights, the South Carolina Supreme Court has
stated "we are aware that it is within the trial court's discretion . . . to refuse to
terminate a parent's parental rights despite failure to visit the child and/or failure
to support the child for a period of six months." Dorn v. Criddle, 410 S.E.2d 590
(S.C. App. 1991).

The termination of parental rights must also be in the best interests of the child.
This means that the court must find that it would be better for the child to have
the relationship between him and his biological parents ended, because there is
no reason to continue that relationship. In most TPR cases, the biological
parents' rights are terminated because the child is going to be adopted and given
a new family in place of the biological one. Sometimes, the biological parents'
rights are terminated because they have severely abused the child or his or her
sibling and the court finds that the parent-child relationship is emotionally harmful
to the child. The biological parents' rights might be terminated because, in the
expert opinion of a therapist or counselor, the child needs to know that he or she
will never be returning to the home of abusive parents so that the child can
progress in therapy.

If a parent's rights have been terminated, then the remaining parent becomes the sole custodian of the child. This would allow for that parent's will to designate someone else to be the guardian upon death of the parent.