A recent article in the Wall Street Journal used the Michael Jackson case to serve as a reminder to parents of the importance of naming a guardian for their children as part of their estate planning.

That may be true, but in my opinion as a Maryland custody lawyer, the story missed an important point.

“ Fortunately, most custodial parents regard the “other parent” as the best alternative in case of their death.

Not all biological parents are as easily persuaded to give up custody as was Debbie Rowe. Watching the court award custody to Jackson’s mother by consent of the interested parties, may have created a false sense of security in some parents who have reason to be concerned about the “other parent.”

Fortunately, most custodial parents regard the “other parent” as the best alternative in case of their death. However there are parents who have reason to be concerned that in the event of death the other biological parent might gain custody. My experience with custody disputes has exposed me to cases that warrant such concern.

Here’s the problem. In Maryland, there is a fundamental constitution right to raise one’s children. Unless a parent is unfit or there are “exceptional” or “extraordinary” circumstances, custody will go to the biological parent as opposed to a third party. The courts have determined that anyone including relatives and persons that might be regarded as de facto parents are “third parties” in this legal equation. In the absence of evidence, there is a presumption in favor of the biological parent.

If you have substantial concerns about what might happen to your child in the event of your death, you may want to consult a family law lawyer with experience in custody disputes. As part of your estate planning you should obtain an evaluation of whether the facts are sufficient to support the conclusion that the other biological parent is unfit or that “exceptional” circumstances exist. If so, the next step is to determine what evidence could be produced in your absence to prove it. The final step is to discuss how a plan for your child might best be implemented in the face of a potential legal challenges.