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 Minor Children:

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.

3. Connection

Does your potential choice already have a connection with your child, know them, and love them already?

4. Trust

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.

6. Willingness

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?

10. Geography

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.

Hug your children today then contact my law office today to discuss your future plans with a free case evaluation!

I service Moon Township, Allegheny County, Beaver County, Washington County, Butler County, Westmoreland County and all of Western Pennsylvania. Contact my law office today to get peace of mind.