In a decision involving a toddler whose father murdered the child’s mother before taking his own life, the Colorado Supreme Court has ruled that the best interests of the child trump parental wills in determining custody.
The decision could have broad implications for Colorado custody cases because it will give lawyers and lower courts “more definitive guidance on how to address these things if they’re contested,” said Dave Heckenbach, a family law attorney.
The girl was 15 months old last August when Pfc. Stephen Sherwood fatally shot her mother, Sara, and then killed himself in Fort Collins. The tragedy occurred only nine days after Sherwood returned from a year-long deployment in Iraq. He was assigned to Fort Carson.
In a will signed a year earlier, the soldier stipulated that in the event both he and his wife died, their daughter should be raised by his mother, Kathleen Taylor Nace. Sara Sherwood also had named Nace as the preferred guardian in her will.
But after the killings, the Larimer County Sheriff’s Department placed the child with Sara Sherwood’s sister, Ginny Villers, and her husband, William Brian Villers. The couple filed for guardianship and challenged Nace’s gaining custody.
Larimer County District Judge Terence Gilmore, however, ruled to enforce the will and named Nace guardian, holding that changing guardians wouldn’t harm the child. The Villerses appealed and retained custody pending the outcome.
The high court wisely held Gilmore’s “no harm standard” was wrong and that he should have applied “the best interest of the child standard” in naming a guardian. A will isn’t binding if a court determines another party “with the care and custody of the minor is better suited to act as guardian.”
Lawyer Heckenbach said the ruling isn’t likely to spur a stampede of contested custody cases. “In my experience, not all relatives are willing to jump in and assume that kind of responsibility,” he said.
In a markedly tragic case, the Colorado Supreme Court has sensibly affirmed a legal standard that puts what’s best for a child before all other considerations. That’s as it should be.
