A child’s best interest should determine who gets custody if both parents die and someone caring for the child seeks custody – not parental wishes as spelled out in their will, the Colorado Supreme Court ruled Monday.
Though the decision came in a case in which a father killed his wife and himself, lawyers said it has broad ramifications that could affect custody cases throughout Colorado.
The ruling is “an important decision” that “spells out what we have assumed for quite some time but not had the definitive guidelines from the Supreme Court,” said Dave Heckenbach, a Denver lawyer who specializes in family law.
The court ruled in the case of Pfc. Stephen Sherwood, who shot and killed his wife, Sara, and himself in August, nine days after he returned from active combat duty in Iraq, leaving a 15-month-old daughter.
A year earlier, in his will, Stephen Sherwood stipulated that the child should be raised by his mother, Kathleen Taylor Nace, in the event that both he and his wife died. He cited his mother’s emotional and financial stability as the basis for his decision. Sara Sherwood, in a separate will, also named Nace as the desired guardian.
After the shooting, the Larimer County Sheriff’s Department placed the girl with Sara Sherwood’s sister, Ginny Villers, and her husband, William Brian Villers. They sought guardianship and objected to Nace’s being appointed.
Larimer County District Judge Terence Gilmore enforced the will and appointed Nace as the girl’s guardian after finding that no “harm” would come to the child by the placement. The Villerses appealed the decision, and the child remained with them pending the outcome.
The unanimous Supreme Court overruled Gilmore on Monday, saying the “harm” standard was incorrect. A “best interest of the child” standard should be applied, the justices said.
The justices said that although the wishes expressed in Sherwood’s will are important, Gilmore should hold new hearings and decide who should be guardian based on the best interest of the child.
Sherwood’s decision to name his mother as guardian may be a relevant factor to be considered in appointing a guardian under the best-interest standard, but Gilmore should consider “all” relevant facts and circumstances in making the final determination, Supreme Court Justice Alex Martinez wrote.
The justices said that when people such as the Villerses, who are caring for the child, contest the guardianship, a judge must make the decision based on the best interest of the child.
“The paramount consideration is the best interest of the child, and a testamentary appointment must yield to this overriding concern when the court resolves a guardianship dispute,” wrote Martinez.
Ginny Villers said Monday that she was happy with the ruling.
“We are very pleased with the decision and just waiting to go to court to see what the judge rules,” Villers said. “The (little girl) is doing really well, and we are really happy.”
Villers and her husband have two children of their own, one 3 1/2 years old and the other 6 weeks.
Amy Rosenberg, Nace’s lawyer, said she wasn’t “altogether surprised” by the ruling.
“I thought the Supreme Court might want to write on the issue of the extent to which a trial court can look at the best interests when there is nothing to disqualify a guardian appointed under the will,” she said. “It (the decision) introduces uncertainty and ambiguity into the naming of a guardian under a will. And I think it raises the possibility that anyone who takes immediate physical possession of a child … can stop what otherwise would be a valid naming of a guardian in the will.”
Rosenberg said she didn’t know whether her client would continue to seek guardianship of the child, now 22 months old.
Sherwood, 35, used a handgun in August to shoot his 30-year- old wife five times. He then used a shotgun to shoot himself in the head.
The child had been at a neighbor’s home when the shooting occurred. Her parents died within seconds of receiving their wounds.
Jeffrey Easley, the Villerses’ lawyer, said he was pleased with the ruling and that it clarifies Colorado law.
“A testamentary appointment for nomination of a guardian in a will is still a preferred undertaking,” Easley said. “But when someone who has the care and custody of the child files a timely objection to the appointment, then the court has to hold a hearing and make a decision on what are the child’s best interests.”
Added Heckenbach: “To the extent that the opinion says that in spite of the terms of somebody’s will, the court needs to examine the overall circumstances and says the desire of the parent is only one factor, it clarifies Colorado law.”
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
