Guardianship lawyers are asked this question nearly every day! The answer is…maybe. Before you begin to worry, let us explain.
When nonmarried parents have a formal custody agreement and one party passes away, that custody agreement is no longer valid. In most cases, the child's permanent custody would revert to the surviving parent.
What If the Surviving Parent is “Unfit?”
If there are concerns about the fitness of a surviving parent, the State has a provision where a third party can step in and apply for guardianship of a minor child. For example, a grandparent may be compelled to apply for guardianship if they feel the surviving parent is not capable of raising the child(ren). Unfortunately, in these circumstances, the burden of proof is on the grandparent (or other petitioner). The third-party would have to prove in court that the surviving parent is unfit, which could result in an expensive and lengthy custody battle.
You Can Still Have a Say
As a parent, you can also take steps to make your wishes for your children known in your will. If you believe that your ex is unfit or unable to care for your children in your absence, you can use your estate plan to spell out your concerns and offer up alternative choices for guardians. After your passing, a judge will be given the opportunity to review your wishes and ultimately decide if choosing a guardian other than the biological parent would be in the child’s best interest.
What if parental rights were terminated?
If the surviving parent has previously had their parental rights terminated, they will not be considered for guardianship of the child(ren) after the death of the other parent. In these cases, it is extremely important for the parent who retains rights to have an estate plan that spells out exactly who should raise the child and what resources are to be used to do so if something happens to mom or dad.
Make Sure You Specify Who You Want to Manage the Money You Leave for Your Kids
If you do not specify who you want to manage the money you leave for your kids, the court will likely appoint your ex-spouse. To avoid that, you will want to make sure you designate who you want to manage the money, how you want it managed and any protections or restrictions you want to place on your kids receiving the money. It is also important to note that you can do this even if your ex is given custody upon your passing. So while they may raise the kids, you can still have someone else managing the money you leave for them.
Get Informed to Be Empowered
While guardianship questions are rarely black and white, the solution in almost all instances is to create an estate plan. There is nothing more important in life than protecting our children's future, and a straightforward estate plan can give you the peace of mind that your child and the money you leave for them will be protected no matter what!
If you have questions or you are ready to get started with creating legal documents to protect your family, please contact our guardianship lawyers at 888-719-5589 to schedule an appointment.