A recent conversation I had with a family member prompted this post, emphasizing the importance of having a will with guardianship provisions set up, no matter how small your estate may be, if you have a minor child.
Her friend’s daughter passed away unexpectedly few weeks ago. She was a single mom after the father passed away some years back. Because she was very young, in her early 30s, she never thought of setting up her estate planning documents. This has caused her family, and especially her children much stress, added on to the grief they were already feeling after losing their mom.
Both sides of the family began a battle in court, trying to obtain custody of the children. The mom’s side of the family lost at the initial stage because the father’s parents had more money. This has caused my family member’s friend to feel even a greater loss, after already loosing her daughter.
Because the court does not know the individuals applying to become the guardians of the children, they do not know the relationship or the bond the children may have with each applicant. If children are old enough to be able to give their own statement and opinion on who they would like to live with, the court will often allow that and may take it into consideration. However, it is not always the determining factor in the process, as the court realizes that kids might not fully understand the extent of the situation and cannot assess the circumstances to take into account everything that is essential for the children’s best interest.
Money – absent other dangerous signs or red flags (abuse at home, alcohol, drugs), is often the key determinant when the court has to choose between various applicants as possible guardians of a minor. It is believed that those with more money have a greater chance of giving the child a better life and being more capable of supporting the child, long-term.
Even though the battle is still ongoing and luckily the child is with family during the process, it is still an incredibly stressful situation for all parties involved that could have been avoided if the mother made an estate plan, indicating her wishes as to guardians for her minor children.
Even though her indication would not guarantee that the designated party would become the guardian, it would give the court a starting point in making the decision. Assuming there would not be any major concerns for the well-being and safety of the children, if the designated party would be granted guardianship, the court would follow the mother’s designation. Even if other family members decided to apply as possible guardians and would present higher income the court would most likely follow the mother’s designation, believing that there are additional factors, not known to the court which make the designated party the best fit for a guardian.
Make sure that you children are protected and call/text Sobon Law, LLC at (216) 586-4246, today to schedule a consultation to review your estate plan.