By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning & Guardianship Attorney

A client approached me and advised me that she is in the process of getting divorced. It’s nasty (divorce generally is). She plans to redo her estate planning. She wants to prevent her husband from gaining custody of her children should she pass away. But can she legally bypass the biological parent as the legal guardian of his children under her Last Will? The answer is (generally speaking) a resounding no! The father has parental rights in the event of her death, regardless of what her Will says unless she obtains a court order regarding same as part of her divorce (not likely to happen).

In a reported law case, Watkins v. Nelson, 163 N.J. 235 (2000), the New Jersey Supreme Court held that guardianship and custody disputes should be settled in favor of the natural parent unless a third party has become psychologically centered and the biological parent is unfit, or if exceptional circumstances exist. There is a legal presumption of custody in favor of the biological parent.

While the client can name her choice for guardian in her will the presumption is that the father will get custody unless he is unfit, in this case.

To discuss your NJ Estate Planning & Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.