What Happens to Our Custody Arrangement If I Pass Away?

Educational blog post by J.M./Zonder Family Law Group (family law) with input from Terri Hilliard Olson, Estate Planning Attorney

The concept of our own mortality, and specifically that none of us know when exactly our time might come, is certainly not new, but we’re probably all thinking a little bit more about what might happen if we suddenly pass during the COVID-19 pandemic than we did at this time last year. Our Westlake Village firm has been getting questions from callers, including first responders, who are the parents of a minor child, raising a whole host of questions about their child’s future. And if you are the parent of a minor child but not in a present relationship with the other parent, that raises a whole other set of questions, starting with where your child would live and with whom in the event that you should pass away.

In such a case, the other parent would typically then have full custody of the child, regardless of whether the two of you had joint custody or you had sole custody. There are exceptions to this outcome, however. If another person, such as a new spouse, had adopted the child, then that person would have custody of the child, as the biological parent would have had his or her parental rights terminated as a prerequisite for the adoption, and termination of one parent’s parental rights in any case would mean that the parent would not have custody of the child. Furthermore, if the other parent is missing, incarcerated, or otherwise not available to provide care for the child, then it is obviously unlikely that he or she would be able to exercise custody.

In such cases – and in cases where the other parent is deceased or where the parental relationship was never legally established in the first place, such as where paternity of an unwed father is never legally established – then it is possible that the child becomes a ward of the state, and a guardian will need to be appointed for a child. In California, this is referred to as a probate guardianship. Our Westlake Village family law firm can address what happens between divorced or non-marital partners, however, we frequently collaborate with estate planning attorneys.

An estate planning lawyer should be consulted to create proper estate planning documents for these situations. A parent has the ability to select who they would like to act as a guardian of the child in their estate planning documents if they die or are temporarily unable to care for their child if ill, and, while this selection would be overseen by the court system, in most cases a parent’s wishes for a guardian would be honored, to the best of our understanding as non-estate planning lawyers. If no guardian is selected by a parent in his or her estate planning documents, the courts will determine who the guardian should be. In many cases, they will choose a biologically related relative who in many cases will not be your choice and not in the best interest of the child.

Keep in mind that a guardianship is not the same as an adoption; a guardian has similar responsibilities as a parent, but they are not legally the parent, and the court would continue to oversee the relationship. In an adoption, a person legally becomes the parent of the child.

But what about a situation where the other parent is around, but you fear that he or she will not be able to adequately care for the child, for example if they deal with drug problems, or they simply have no interest in raising the child? Such cases are a challenge, as, again, legally that person would have custody of the child. One possible option is to persuade the other parent to legally waive their parental rights. Doing so would also mean that you would be waiving your right to receive child support from him or her during your life and other possible rights that might go to benefit the child from the other parent. The other parent may be quite open to the idea of relinquishing their parental rights and obligations in favor of a grandparent or other person raising the child in your absence, but, if not, pursuing an involuntary termination of parental rights in the courts can be an uphill climb. At times, our Westlake Village family law firm collaborates with lawyers who handle guardianship or adoption matters.

In any case, other safeguards would apply to protect the child such as Child Protective Services which can act in conjunction with the dependency court system to remove a child from an unfit parent’s custody. But, obviously, hoping for such intervention to work perfectly is not an ideal plan.  If you are concerned about another parent’s ability to care for your child in the event of your death, you are advised to speak with a family in conjunction with an estate planning attorney to determine your options.

Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.