PLANNING FOR FAMILIES WITH MINOR CHILDREN
Who Gets Custody of Your Minor Children When You Die?
When Parents Leave a Will
Protect your minor children by having a properly drafted Last Will and
Testament. Parents have the option of naming a guardian for their child
in their respective wills. Ideally, parents would nominate the same guardian
in their separate wills. This avoids confusion or dispute, because the
nomination does not automatically appoint the selected person as the child’s
guardian. A court must still approve the parents’ choice. However,
probate courts almost invariably honor the parents’ wishes in appointing
a guardian, unless the person they've selected is grossly unfit. This
might occur if something happened after the parents wrote their will,
and the named guardian is incapacitated when the parents die.
Who Should You Choose as Guardian of Your Minor Children?
Your first instinct would be to look at family and close friends, but sometimes
that does not yield very many promising prospects. The choice may not
be easy, but it is imperative that you make it now before it’s too
late. If you don’t name a guardian in a valid Will, you will have
no say in who the judge appoints to take care of and raise your children.
You may not be able to make the perfect selection but you can make the
best one for your children.
When Parents Don’t Leave a Will
When parents don’t leave a will regarding the care of their minor
children, the court will decide on a guardian based on the best interest
of the child. The "best interests" criteria is similar to what
a court might use when selecting a custodial parent in a custody fight.
Ideally, judges want to move a child into the care of a guardian the child
knows very well. This minimizes the disruption in his or her life at a
traumatic time. Family members are usually preferred, and they have the
right to petition the court for the appointment.
Management of Inheritances
When a child inherits assets from his or her deceased parents, the funds
are devoted to his or her care. Some parents name separate individuals
to care for their child and to oversee his or her financial needs - this
is called a custodian. A nurturing individual who may be most suited to
raising the child, that is to be the guardian, might be lacking in financial
common sense. Parents have the right to name the same person to both roles,
but a court must approve the appointment of the custodian just as it must
approve the guardian. A custodian almost always has to report to the court
on an annual basis, giving a detailed accounting of the child’s assets.
Death of One Parent
When parents don’t die together in a common accident or disaster,
the surviving parent always retains custody of the child; this is not
a guardianship situation. If the parents are divorced, the non-custodial
parent assumes full custody. If the parents were never married, the child’s
other biological parent can come forward and petition the court for custody.
Custody will almost always be granted, unless the court finds him or her
to be unfit. Another individual would be appointed as guardian only if
the second parent dies. If the second parent leaves a will naming a guardian
and custodian, those wishes usually guide the court’s decision.
If the second parent to die does not have a will naming a guardian and
custodian, the court might look to the guardian and custodian named in
the first parent’s will.
Foster Parents - A Potential Disaster in the Making
If you do not name a guardian in your will, Child Protective Services will
pick up your minor children and place them with Foster Parents even if
a loving family member comes forward to take care of the children. This
is scary for your children, going to live with complete strangers in a
strange house in a strange neighborhood. And worse of all, your children
may be split up and go to different Foster Parents, i.e. there is no guarantee
that your minor children will stay together with the same Foster Parents!
Although some Foster Parents are kind and loving, others quite frankly
are not. Some people become Foster Parents just to receive a government
check and have no real interest in the children that they take into their
homes. You have no guarantee over who the Foster Parents will be. You
have no guarantee whether your children will remain together or be split
up. A judge will have the children stay with the Foster Parents until
a family member or someone who knows and loves your children files a petition
with the court to be appointed as the guardian of your children. This
is timely and this is expensive. This may be avoided by naming a guardian
in your will. Remember, not all Foster Parents will have your same cultural,
religious, political, and moral standards; meaning there is no family
out there that is exactly like yours.
10 Factors To Consider When Choosing a Guardian and Custodian for Your
1. Mental Ability
Consider the maturity, temperament, energy, long-suffering, and experience
that is needed to raise children. Your potential choice doesn’t
have to be perfect, but do they have what it takes to be a parent? Are
they too young to handle the immense responsibility?
2. Physical Ability
Are they in good enough physical health, to take on the challenge of raising
children? Are they perhaps too advanced in years to really handle the
physical toll parenting can take on a body.
Does your potential choice already have a connection with your child, know
them, and love them already?
Do you, deep down, truly trust this person to raise your children with
integrity and stability? Can you count on your potential choice to at
least try to raise your children according to your wishes and instructions?
5. Time and Availability
Does your potential choice have the time to dedicate to raising children?
Do they have a high-powered, stressful job that could possibly interfere
with them giving your children adequate attention, especially considering
that your children will, at this point, have lost their parents. This
will be a very difficult time of transition for your children and they
are going to need a lot of attention and care to get them through this
grieving process in a healthy way.
Does your potential choice even want to be considered? Do they even like
kids? Perhaps, your choice already has a large family and they would decline
to serve because they would not want to deal with the sudden influx of
your children into an already full house.
7. Suitability of Home Life
If your potential choice already has children of their own, are the ages
and temperaments of those children compatible with your own? Does it make
sense to put your children in that home with those children? Would the
presence of those children, make for a safe, nurturing, and happy home
life? Is your potential choice married or single? Is their home a suitable
place for your children to live?
8. Standard of Living
Does your potential choice live at or comparable to the current standard
of living to which your children are accustomed, or are they going to
have to adjust to suddenly having a lots less or even a lot more? Under
normal circumstances, kids can adjust fairly well to changes in lifestyles
if their parents are there to watch over them and guide them through.
But you won’t be there, so in addition to having to grieve for you,
will they have to get used to a whole new socio-economic level?
9. Religion and World View
Does your potential choice hold to the same religious tenants and world
view that you do? Are you non-religious and raising your children outside
of the constructs of an organized religion? Would your potential choice
be willing to raise your children the way you would or would they be more
likely to convert your children to their religious beliefs?
Does your potential choice live in the same area as you? Would they be
willing to move or perhaps would your children be forced to move to a
new city or even a new state?
Act today, protect your children today!
If you have minor children, your will can never be created too soon, which
is why it's important to discuss your situation with a lawyer. If
you would like more information on how I might be able to help, contact
D'Onofrio Law Office, P.C. today. I always offer my clients a
complimentary initial consultation.
Moon Township, Allegheny County, Beaver County, Washington County, Butler County, Westmoreland
County and all of Western Pennsylvania.
Contact my law office today
get peace of mind.