In the Death of Both Parents, Who Gets Custody of the Child?

Child Custody ContractAs death and leaving behind young children are unthinkable for some parents, they dismiss guardianship plans as something they can put off for a later time. When the unthinkable happens before the parents can appoint a guardian, however, the child may face the consequences, and going into foster care is one.

Getting in touch with trustworthy family law attorneys can help parents discern a legal guardian who will take over their duties at least until the child turns 18. Here are some things to consider when creating guardianship plans:

Write a Will

When writing a will, make sure to discuss it with your spouse or the child’s other parent, especially if you’re in good terms. If the wills name two different people as legal guardians, it will fall on the judge to determine which appointment is in the child’s best interest. Similarly, in the absence of a will, family members and friends can step forward and nominate themselves for the position. The judge will then make his or her selection based on evidence they will provide during hearings.

Lawyer Mary O’Reilly suggests naming a guardian in the will, even if both parents can’t come to an agreement. It’s better to give the judge two selections than no option at all.

Choosing a Guardian

When selecting a guardian for the child, consider the child’s affection for the guardian of choice and vice versa. Doing so will help you make sure the child will feel comfortable in the guardian’s care. Also consider your nominee’s values, both religious and moral, especially if you have strong preferences in the way your child should be raised. You may also want to look into the guardian’s marital status, age, finances, health, location, and if there are other children in the household.

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After selecting a viable guardian, talk to them about your decision. They may feel flattered, but they can still be unwilling to take on the role. If they say “yes,” but seem apprehensive, you may want to rethink your decision. It’s best to name an alternate and willing guardian, in the event your choice becomes unavailable or refuses to take on the responsibility.