Who Gets Custody of Children If Both Parents Die?

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As a parent, you have vowed to take care of your children until they have reached adulthood and sometimes beyond. Part of this includes planning for if the unthinkable happens, and you are no longer alive to fulfill this vow. A legal guardian will take over your duties if you and the other parent die before the child turns 18. Who takes over this duty depends on whether a will has been written before death.

If There Is No Will

If a will has not been written at the time of the parents’ death, the court will decide who becomes the child’s legal guardian. All friends and family members can step forward and nominate themselves for the position, despite your feelings for them. A judge will determine who is best suited for the job based on evidence as to what is in the best interest of the child given during a hearing. A judge might have different values or priorities than you do, so he might not choose the same person you would have considered while you were alive. The child does not immediately go to a grandparent or sibling if the judge determines that relative is not fit for guardianship.

The judge might also select a backup guardian, who will fulfill the duties if the originally chosen guardian cannot continue.

If Will Exists

If you write a will before your death, you can and should name a legal guardian for your children. However, the court has final say in the matter, according to California lawyer Jennifer J. Porteus. Unless there is an obvious issue as to why the named guardian cannot serve, your choice will likely be appointed.

In your will, name an alternate guardian just in case your first choice cannot or will not accept the responsibility.

If Wills Disagree

If you are married to or on good terms with your child’s other parent, discuss whom you are naming as guardian in your will. If the wills do not name the same person, the judge will determine which guardian appointment is in the best interest of the child based on court hearings.

Even if you can’t agree, still name your chosen guardian in your will. It is better to have two selections from which the judge can choose than no options at all, according to New York lawyer Mary O’Reilly.

Choosing Guardian

You need to consider many factors when selecting a legal guardian for your child in the event of your death. Start by sitting down with the child’s other parent and making a list of who would be a possible choice. Discuss the pros and cons for each person. Consider the child’s affection for the person and vice versa—will your child feel comfortable in their care? You should also take their values, both moral and religious, into consideration, especially if you have a strong opinion about how your children should be raised. Other considerations include age, finances, marital status, health, location and other child in the household.

Notifying Guardian

After you have selected who you think is the best person to be your child’s legal guardian, talk to him about your decision. It might be that they are flattered, but unwilling to take on the role. They might say “yes,” but seem reluctant, which could make you rethink your decision.

When you speak to the potential guardian, let her know why you think she is the best option. Let her know what type of financial resources will be available if she took in your child and how you would expect your child to be raised. Do not be surprised if she wants some time to think about the decision or to talk it over with her spouse.

Changing Guardian

When your child is an infant and your parents are young and in good health, they might be the perfect legal guardians. However, 10 years later, when the child is active and your parents are becoming elderly, they might not be such a great option anymore. You have the opportunity to specify that your parents should be the named legal guardians for a certain age frame. After the child reaches that age, a different guardian will be named as the primary choice.


About the Author

Kelsey Casselbury has a Bachelor of Arts in journalism from Penn State-University Park. She has a long career in print and web media, including serving as a managing editor for a monthly nutrition magazine and food editor for a Maryland lifestyle publication. She also owns an Etsy shop selling custom invitations and prints.

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