One of the most important reasons for creating an estate plan is to ensure your children are cared for if something should happen to you. Having an official plan in place ensures you retain the power to make the decision about your child’s caretakers in your absence. When you prepare your own Last Will & Testament you can appoint a Guardian for your children, including alternate Guardians for them. As part of your Last Will & Testament, instructions can be given for your Guardian regarding the care and upbringing of your children.

Unfortunately, without a legal plan in place, families can descend into chaos and a child’s well-being suffers while everyone attempts to sort things out. Not to mention the person or people entitled to legal custody might not be someone you’d ever choose to raise your child.

Who Gets Custody of Your Child?

There are several people who you could appoint guardian or the state could choose to receive custody of your child if you die. If you and your child’s other biological parent are both considered custodial parents, custody automatically remains with this person. Rarely is custody an issue as the result of a death in a situation in which there are two custodial parents.

If you and your child’s other parent both die, or you are the only custodial parent and you die, custody does become an issue. You can choose or the state will likely choose to grant custody to the non-custodial parent, grandparents, other relatives, or Godparents or family friends.

Remember, none of these scenarios occur automatically (as is the case when there are two custodial parents) and the state does not, nor should you, automatically grant custody without some consideration. It is also possible, though never preferred, that the state will take custody of a child. This is the case only when there are no better alternatives, and the best choice is for the child to enter the foster care system.

If a deceased parent had not appointed a guardian, it’s possible for a concerned relative wishes to volunteer as a guardian, but this arrangement might take some time, during which the child would be in the foster system. According to foster care statistics from 2014 from the US Department of Health and Human Services’ Administration for Children and Families Administration on Children, nationally, it takes a median amount of time of more than 13 months for a child to exit the foster care system.

Paternity and Custody

In order for a child’s non-custodial parent to be granted custody when the deceased parent has not created a will, paternity must be established. This can be done via the non-custodial parent’s signature on a birth certificate or a signed acknowledgement of paternity form filed in the court. The non-custodial biological parent can also initiate testing after the death of the child’s custodial parent to prove his or her relation to the child.

If you are a parent, it is of utmost importance to create a legally sound arrangement for the custody of your child, should you die while your child is a still a minor. Not only does this prevent family disputes, it also ensures the state will not need to take custody of your child.

For more information or to schedule an appointment to create a custody arrangement for your child, contact the Law Offices of Elan Wurtzel at 516.822.7866.

Source: Child Welfare.gov