All parents worry about what will happen to their kids when they pass away, but that fear is definitely greater for parents of minor children. I’d argue that, probably, for parents of children who are not together anymore, the fear even greater still.
Especially if you’re the primary parent, you worry about what will happen – even if you already suspect that you have a strong idea. In an estate planning sense, most ‘guardianship’ type provisions are designed to address what might happen in the event that something happens to both parents at the same time. A Raising Helen situation, if you will.
But what happens if you’re not together and only one of you passes away? What if the parent who passes away – you – is the main caregiver? What if there are concerns or issues with the child’s other parent? What if he is unable to financially provide for the children without your contribution?
Do you have any options – and what are they?
They’re good questions and, unfortunately, the answers are tough ones.
In most cases, in the event that only one biological parent passes away, the child(ren)’s other biological parent would get custody. This is true, obviously, in the case of married couples, but it is also true in the case of unmarried, divorced, separated, or broken up couples, too. After all, no one has a greater claim to a child than a biological parent.
Can I change this legal presumption in favor of a third party over a biological parent?
Probably not.
I mean, sure, you could draft an agreement (whether a custody agreement or a more traditional estate planning document) that specifies your wishes. A custody agreement would be one that your child’s father would almost certainly have to sign, while a will or estate plan is unilaterally executed.
It would probably be difficult to get his signature on a custody agreement like this. After all, why would he want to give custody to – for example – his in-laws, which would take away his autonomy to raise the child in the way he sees fit? It’s unlikely in the extreme, in my opinion. And, if he was the kind of person who was clearly and obviously going to prioritize the relationship with your family even after your death, you probably wouldn’t be in this position now, worrying about what would happen if you died. Right? You’d already be pretty amicable and wouldn’t have these concerns.
If he did sign something, I don’t think it is very likely that a court would enforce it. The way the law works in Virginia is that everything related to minor children – custody, visitation, and child support – is modifiable based on a material change. Your death would certainly be a material change so, even if something were drawn up and negotiated and even signed, the material change would throw everything into question.
Would the judge follow the agreement? I seriously doubt it, especially if the people you want to have custody did not have any custody/parenting time prior to your death and your child’s father did. The general rule is that you can’t pre-agree to custody before a material change takes place; this is why you can’t, for example, put custody provisions in a prenuptial agreement.
The reasoning here is that custody, visitation, and child support are based on the best interests of the child – and what is in their best interests isn’t really something we can know ahead of time, before some terrible event (in this case, anyway, though a material change isn’t always something terrible) happens.
My other concern is that “best interests of the child” is technically the standard that exists between coparents. If you and your child’s father went to court to fight for custody, now or in the future, that would be the standard the court applied. For nonparent third parties – like grandparents, or whoever else you think might be better suited to have custody and/or parenting time after your death – the standard is actual harm.
That means that, instead of having to demonstrate that being with your parents (or whoever) is in your child(ren)’s best interests, they’d instead have to show that actual harm would befall the children if they did not have custody and/or parenting time with the kids. That’s a much, much more difficult standard to meet.
Usually, a nonparent third party isn’t eligible for the application of the “best interests of the child” standards to their case unless they actually have custody – which can happen by agreement, but which I don’t think could be negotiated in advance before something unforeseeable like your untimely death.
What if dad isn’t fit to have custody?
If dad is in a bad place – he’s an addict, he’s an abuser, etc – then that would be an argument you could make. Heck, it may even be an argument that you’re currently making, now, as part of your ongoing custody and visitation issues.
I do think, though, that unless dad has had his parenting time taken away or his parental rights terminated, he is very likely to get custody.
Family courts – technically, here in Virginia, we call them juvenile courts or juvenile and domestic relations courts – are notoriously reactive, not proactive. In most cases, especially after something horrific like the death of their mother, the court is going to at least give dad a chance to parent on his own. The court may intervene (on another petition filed by the non parent third party, of course – not on its own) if things devolve to a point where the best interests of the children is not being served, but – usually – in the case of death as in many, many other types of situations, dad will at least be given the opportunity to fail.
What, are kids just guinea pigs?
I mean, I hate to say it quite like that, but – I admit – I’ve thought it before. But, then again, if it were you, you wouldn’t want the court to intervene before you’d even done anything actually wrong.
Parents have rights. Kids have rights, too, and the courts think generally that having as much access to both parents as possible (or, in this instance, the one biological parent that they have left) is hugely important. There’d have to be some really compelling facts and evidence to get the court to deviate.
So, the agreement is a waste of time then?
Ultimately, the decision(s) are always yours. You could try to get an agreement and put in writing what you want to happen – but you should know there’s a strong likelihood (in fact, I think I’d call it an almost certain probability) that this will not change the outcome.
Is it worth $2-5k for a “maybe this will help” scenario? To me, the answer is clearly no, though a different attorney might give a different answer. You are always welcome – no, encouraged – to get a second opinion if you get advice you don’t like or advice that doesn’t jive with your intuition. If nothing else, a second opinion will give you more confidence in your choices.
To add insult to injury, I believe that executing an agreement like this, if you let your parents know that you’ve executed it, will heighten their sense of dissatisfaction in the event you do die. It will make them likely to pursue costly litigation, especially if they believe they are entitled to custody. Additional contentious litigation is probably not in anyone’s best interest, least of all of your child, and this could continue to erode an already fragile relationship between your family and your child’s father.
What if he can’t afford to have custody?
If he can’t afford it, that’s another layer of complication, too. If he is willing to give custody to your parents (or whoever), then he could do that – either by agreement or court order – and could still ask for parenting time. If they had custody, though, it is possible that he would have to pay child support, something that any attorney he consults with will be sure to advise him of beforehand.
If you are truly worried about his (or your parent’s) ability to care for the child(ren) after you’re gone, I think life insurance and a good estate plan are the two best pieces of advice I can offer you. Certainly, either (or both) would be a much more effective guarantee that your child would receive the things she needs to be taken care of in the event of your death, even if it doesn’t necessarily guarantee that the person you’d choose would step into your shoes. You could name someone – your child’s father or your family member(s) – as trustee on behalf of the kid(s) and even put in limitations on how the money is spent.
It’s not a perfect situation but, then again, it’s probably an unlikely scenario. For more information, to request a copy of our custody book for moms, or to register for our upcoming Custody Bootcamp seminar, give our office a call at 757-425-5200 or visit our website at hoflaw.com.