Who Will Raise My Child?

Most people read the newspaper or watch the news on television every day and see story after story of tragedies that leave young children with no parents. We then ask ourselves, “What’s going to happen to those poor kids?” but very few know the answer to that question.

When a parent dies, normally the other parent will take the child and continue to raise him or her. However, if the remaining parent is unable to care for the child or both parents are deceased, the court steps in to determine who will care for the child until he or she turns eighteen. This court supervised relationship is called a guardianship.

There are two kinds of guardianships: guardianships of the person and guardianships of the estate. A guardianship of the person is where the guardian has responsibility for the physical custody and care of a child who is under the age of eighteen. This includes determining where the child lives, where the child goes to school, providing food, clothing, and shelter, and a number of other duties that are specific to the care of the child themselves.

Guardianships of the estate occur when the child has money or other property that belongs to them that needs to be managed by an adult. Usually guardianships of the estate are used when a child is inheriting money, real property, a car or other assets that they cannot legally manage until they reach the age of eighteen. The guardian of the estate will act as a financial manager for the child, ensuring that the money or property is cared for, invested and used for the child’s benefit. People can apply for either type of guardianship, or if needed, can apply to be guardian of both person and estate.

In order to be appointed a guardian, the person who is seeking to care for the child must submit a request to the court, called a petition, which gives the court information about the child, about the proposed guardian, why a guardianship is needed and why this person would be the best guardian for the child. Once the petition is submitted to the court, the court and social services investigate the guardian and set a time for the guardian’s request to be heard. On that date, the judge will say “yes” or “no” to the request. If a person is appointed guardian, they will continue to check in with the court regularly, either through accounting for the use of a child’s funds on an annual basis or submitting annual status reports about how the child is doing. The court and the guardian will work together until the child turns eighteen and the guardianship is terminated.

And so, back to our question: who will raise my child? The answer is up to you: it could be someone you choose or it could be a stranger chosen by the court. If no guardian is specifically named by the deceased parent or parents, any person can apply for guardianship with the court. It does not need to be family, it doesn’t even need to be your best friend; it can be ANYONE so long as they prove they are the most appropriate guardian available. Now if you have children, or know family or friends with young children, you know that worrying about the child is second nature. No one wants to leave the raising of their child to chance or uncertainty. There is a way that parents can determine who should raise their child through developing an estate plan with a guardianship nomination which tells the court and the world who the parents want to care for their child.

If you are a parent, have young nieces or nephews, or have friends with small children, you or the people you know should come to an estate planning firm that not only can help develop a comprehensive plan for caring for the child, but can help with the guardianship if the time ever comes. Make sure your child is in the loving hands that you choose and not left to the whims of chance.

Sarah is the Associate Attorney at the Law Offices of Donald A. Hunsberger in Orange. For moreinformation call (714) 663-8000 or visitwww.hunsbergerlaw.com.

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