You’ve gone to court and gotten your divorce. The Judge granted you custody of the children. Now what happens to them if you die before they reach adulthood?
It’s a hard thing to think about. But planning ahead for the unexpected can give you peace of mind and your children a bright future.
Below are some things to think about as you plan for your children’s future:
1. Parental Rights
The other parent is first in line to receive responsibility for the children. That is, if the other biological parent has established paternity. Or, in the case of same-sex couples, if an adoption has taken place.
2. Third-Party Custody Claims
You might be considering naming a close friend or relative in your will as the children’s guardian. There are several reasons why you might want someone else to care for the kids instead of the other parent. Unfortunately, it does not matter if you name a third party as your children’s guardian. If paternity isn’t an issue and the other parent is still living, naming a guardian will not work.
Instead, the third party may be able to file for custody. To file for custody, he or she should have a close relationship with the child. Grandparents are usually the first to come to mind, but it can be anyone with a close and loving relationship. To win, he or she would need to prove the other parent is unfit. An unfit parent has “acted inconsistent with his or her constitutionally protected rights.” For example, the other parent has a substance abuse issue. Or, the other parent has abandoned the children or neglected them. But there are other factors a Judge could use to make that determination. You should speak with an attorney from our firm to find out more information.
3. Both Parents Have Passed
If the other parent has already passed, naming a guardian in your will will be effective. If you do not have a will, the State of North Carolina will take responsibility of your children. Child Protective Services (CPS) will look to friends and family to serve as their guardian. It’s possible that the guardian may want to adopt later on, but they don’t have to.
If no one is able to serve as guardian, the State will take care of your children through the foster care system. This is the least favorable outcome. That’s why it’s important to have a will. And to have crucial conversations now about your children’s future care. Please contact us to discuss your estate plan and find out more about keeping your family safe.