If I Die, Who Gets My Children?

If you are a parent, this is a question you have to ask yourself at some point and the sooner, the better.    If you are divorced, you definitely have to ask yourself this question, but you probably will not like the answer.

If you are the primary custodian of the child and you die, the child will most likely go to the other parent.  The reason being that in the eyes of the law a fit parent has a superior right to a child over all other outside individuals.  As with anything else in the law, there are exceptions to this rule.  If, for instance, the other parent has been found to be unfit, a third party could step in and petition the court for custody.  Unfortunately, it is very difficult for a court to find that a parent is unfit.  Normally, a finding of unfitness is a prelude to terminating a parent's rights to a child which is something courts normally try to avoid doing if at all possible.  Another possibility is that the other parent simply agrees to allow someone else to have custody of the child.  Finally, as we discussed in a post earlier this year, someone with possession of the child may be able to pursue a custody action against the surviving parent.

Although it is not a foolproof protection, I advise my divorce and custody clients to have a will prepared that spells out his/her wishes as to the custodian of the child.  While it is certainly not controlling on a family court, who must still make a decision based on the best interests of the child, it may have some persuasive effect on the court.

Even if you are not divorced or otherwise not together with your child's other parent, this is a topic you cannot ignore.  I had a professor in law school during an estate planning class who summed it up by saying, "Imagine the person in your family who you trust, like and respect the least.  That is probably who will wind up with your children if you do not have a will."  While she was probably exaggerating to make her point, the fact remains you should do everything you can to safeguard what is most precious to you in every way that you can.  If you have more questions, please contact the Alford Law Office.

Photo courtesy of:  Ken Mayer

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