Custody over minor children is understandably both an important and complex topic. When a parent passes away, a Will generally controls their custody. But if there is no Will, there is generally a court process involved based on family relationships and the best interests of the child.
When a Parent Has a Will
A parent can essentially give custody over to any adult individual through their Will, by naming this individual the guardian of their child. (Naturally, a surviving parent will always retain custody, regardless of the Will in place.) However, if there are no surviving parents, the guardian listed by a parent in their Will is usually honored by the court, unless for some reason that the individual is deemed unfit. If the individual is deemed unfit, the custody issue may be treated as though the parent does not have a Will.
When a Parent Doesn’t Have a Will
If only one parent doesn’t have a Will and passes away, a minor child will still be in custody of the surviving parent. But if both parents have passed on, and there is no Will, the courts will attempt to look first for a close family member who is willing to take the child in. The Department of Child Protective Services may send out notices to surviving family members in an effort to find the best environment for the child, and will then select a suitable one. This is not like an inheritance, which is governed according to a strict hierarchy, because not all family members will be in a position to take on a minor child or will be willing to do so. If there is a dispute between family members regarding who should take custody of the child, the court will make a determination regarding the best interests of the child. If the child is old enough, their own opinions may also be taken into account.
When Parents Die Together
What happens when two parents die at the same time? This is more common than you might think. If parents are involved in a car accident, for instance, or if they are involved in a plane crash, they could both die together. Because of this possibility, it’s important that spouses draft their Wills together and that they be on the same page regarding custody. This is a problem because the parent who died last most likely will have their Last Will supersede the other.
As an example: a mother and a father die in a car crash. The mother’s Will specifies that the father will gain custody if she dies, and failing that, her own mother. The father’s Will specifies that the mother will gain custody if he dies, and failing that, his sister. If the mother dies first, custody will be transferred to the other; when the father dies (moments later), custody is transitioned to his sister. Unless the father dies first, the grandmother will never gain custody.
As you can see, it’s very important for parents with minor children to have a guardian clearly outlined… and to discuss the guardianship with the individuals in question in advance. Without a proper Will in place, custody often comes down to whoever is available at the time. This possibility may not always result in a situation which is in the best interest of the minor child. If you need a Will drafted or have further questions about custody, contact Covelli Law Offices today.