WHO GETS THE KIDS IF I DIE?
"My ex-husband doesn't provide support. Could he get custody of my son if I die?"
"I have custody of the kids and have remarried. My present husband has been a much better father to the girls than my 'ex' ever was. How can I assure he gets custody if something happens to me?"
The short answers are "yes" and "you can't," respectively, but more needs to be said. Choosing a guardian is the most important reason for making a will if you're the parent of young children. It's particularly important if you're a single parent, because you're roughly 50 times more likely (though still unlikely) to die prematurely than two parents are. Without a will you lose most of your ability to influence who will be appointed guardian. But even with a will, your power has limits.
Children aren't property. You can't pass on their custody to anyone. You can only recommend that the court appoint the guardian you prefer. Normally, your wish will be honored if your choice will accept the responsibility, but there are exceptions and the biggest involves surviving parents. If one parent dies the other usually retains or gains custody. This is only natural for intact families, but can create problems when parents are divorced, particularly if the custodial parent has remarried. If the non-custodial surviving parent wants custody, he or she will get it unless the court finds the person has abandoned the children or is unfit as a parent.
If you don't want your ex-spouse to gain custody if you die, be sure to consult us. There may be steps you can take now to help achieve your goal. If your ex-spouse is willing to relinquish parental rights, your new spouse can adopt the children. If your ex-spouse isn't paying support, maybe you can open the way for adoption by bringing an abandonment action now to involuntarily end his or her parental rights. Or maybe the best you can do is to name your choice of guardian in your will and include an explanation of why he or she is a better choice than the surviving parent. But by all means, get professional advice; that is, call a lawyer.
If, on the other hand, you do want your former spouse to get custody, be sure to say so in your will. Otherwise someone in your family might try to gain custody of your children and initiate expensive, nasty litigation that would benefit no one.
Choosing a Guardian. Parents living together need to name a guardian in case they die in a common accident. The court will almost always favor their choice if the person is willing to serve. It's vital that both parents agree on their choice. If one parent names someone from his family and the other someone from hers, a nasty fight is almost inevitable.
Whom should you choose? It can be a difficult choice, because no candidate is perfect and you can't select just the best traits of each. Most parents look to their brothers and sisters. The children's grandparents may be willing now, but may lack the health or energy for the job later. Most experts recommend naming one guardian rather than two: your sister, not your sister and her husband. Joint guardianships can create problems beyond what happens if the couple separate. If things work out, they can always adopt the children. Be sure to discuss the matter with your choice to assure he or she is willing to serve. If you provide for a trust to delay beyond 18 the age at which your children inherit, you'll probably want the same person as trustee and guardian.
So, do some planning, use your legal services program and feel good about acting lovingly and responsibly. Contact us to determine the best course of action for you and your family.