As parents and caregivers, the main objective for most is to provide for our children. Our desire is to give them the absolute best we possibly can, both now and in the future. But in planning for their future, how many of us have actually secured their future if a tragic event were to occur to us, their providers?
Sadly, the majority of people with minor children spend more time planning a vacation than deciding what would happen to their children if something tragic were to happen. In fact, some surveys indicate less than half of couples have a will or other document in place nominating a legal guardian for their children. According to Bill Kilpatrick of The Will Lawyer, P.A., one of the most cited reasons for not doing so is because they don’t know whom to choose. So, parents procrastinate and hope that it just won’t happen. The problem with this thinking is it is not the providers who are put at the greatest risk, but the children. If parents don’t know who would be best to raise their own children in the event of something tragic, then how comfortable would they be with a court making that decision?
“Unlike property you own, children cannot be devised or ‘willed away’ to someone upon one's death or incapacity. In fact, no matter what documents are in place, the court always has the power to do what is in the best interest of the child,” advises Bill. Because there is a presumption that a minor child should be in the custody of his or her natural parent, if one parent dies or becomes incapacitated, the remaining natural parent is usually awarded sole custody. But what happens if something tragic were to happen to both natural parents? This is the situation every parent with minor children should have discussed, decided on, and secured the proper documentation beforehand.
If something were to happen to both parents, with no plan or legal documents in place, authorities might have no alternative but to take the minor children into protective custody. This becomes even more likely if a couple does not have any nearby relatives. The children might have to remain in protective custody until the court determines who should be awarded custody. If a parent has not nominated guardians for their minor children, the court makes that decision without any input from the ones most qualified to make that decision. Further, if there are multiple people seeking custody of the children, things can get even worse. While they fight it out in court as to who is awarded custody, the court makes the final determination. This can easily lead to someone raising your children whom you never would have chosen. It can also lead to costly litigation and damaged or broken family relationships, not to mention the effects on the children themselves.
The good news, however, is parents can nominate who will be awarded custody if something unexpected and tragic were to occur. This nomination raises a presumption with the court, and the nomination will likely be honored because the court figures, “Who better to know the best interest of the child than the parents?” Only in extreme situations where someone can show that the nomination is not in the best interest of the child will the court override the parental nomination.
The best practice is to have a clear, documented plan in place. How? Bill advises his clients to first consider what traits, values and characteristics they would want instilled in their children. Don’t simply choose the person who has the most financial resources; chose the one who will raise your children in the way you would. Second, make sure you have properly documented the nomination of that person or couple. Finally, consider whether that person would be immediately available if something were to happen to you or if you need to nominate temporary guardians to take custody of your children in the short-term until the long-term guardian becomes available.
Our minor children are the most important asset we have in our lives. And while we all plan to live our lives for a long time to come, let’s quit procrastinating and take some time out of our hectic schedules to document how we would want them raised if things don’t go according to plan.