Background
Iowa Legal Aid staff answer a lot of questions from clients about what will happen to their minor child after they die. Many times the questions are from clients who are very sick. They also come from parents who worry about the other parent’s ability to care for the child alone if the parent who is calling suddenly died. This situation is common in separated couples who have been through a difficult relationship. The former couple may disapprove of each other’s parenting skills, or the other parent’s new partner. It also comes up for couples who want to ensure that if they both were to die, the child would still end up with good parents. This can be a big issue if the parents do not want specific family members to get custody, or fear that others would only want the child because they could get the child’s social security, life insurance, or other benefits. Clients wonder if they can choose who takes custody of the minor child after they die.
This article will help you understand the basic issues involved. In most cases, having a will is an important way to help guarantee your child’s future well-being. Wills can be complicated, however, and normally should be written by an attorney. This article does not tell you how to write a will yourself, or how to deal with adoption or termination of parental rights. If you have questions relating to these issues, you should get individualized advice from a lawyer.
Q. Who gets custody when a parent dies, leaving a minor child?
A. Generally, the surviving legal parent gets custody. A person may be the surviving biological parent, but not the legal parent. For example, if a parent never established paternity, or if a parent’s parental rights were ended, the biological parent would not be the legal parent. In contrast, if someone adopted the child, that person would be the legal parent. If the surviving legal parent is out of the picture (that is, has disappeared, has no contact with the child), the issue often ends up in court.
Q. Can I ensure who gets custody by putting my wishes in a will?
A. Having your wishes stated in your will does not guarantee that they will be binding. This means that while Iowa law states courts should give your wishes preference, they do not have to follow them. This is because Iowa law views your child as different from your car, clothing, or other property. Still, clearly stating your preference in a will does help you protect your child. Where there is a legal surviving parent, Iowa law favors giving that person custody, in most cases. Still, someone else could file a guardianship lawsuit after your death. That person would be asking the court to make him/her the child’s caretaker, instead of the surviving legal parent. If your will also selects this person as your child’s guardian, the will could be helpful to that person.
Q. What things weigh against the surviving legal parent getting custody?
A. If a court is asked to make a decision about who should be the child’s caretaker, it will look closely to what is in the child’s best interests. Courts presume that a fit surviving parent is the best choice, but they do not have to follow that presumption. For example, if the surviving parent has been out of the child’s life for a long time, s/he may no longer be the preferred caretaker. This is even more true if a substitute caretaker, such as a step-parent, helped raise the child, and your will asks that this substitute become the guardian. Other factors include where the surviving parent has a long history of crime, drug or alcohol addition, severe mental incapacity, or has been abusive to the child, or to other children. Basically, the court looks to issues of how fit the person is to be the caretaker. Stating the reasons why the other person is not fit, in your will, can help the court understand what is truly in the child’s best interests.
Q. What if there is no surviving legal parent?
A. If this question goes to court, having a will that explains who you want to be the child’s guardian, and why, becomes even more important. The court will still consider what is in the child’s best interests, and who can give the child a safe and stable home. The factors described above thus remain important. However, if there is no surviving legal parent, it is easier for the court to follow your wishes. If you do not have a will, it is much more difficult for the court to know what your wishes and reasons are.
Q. Will a judge look at who has the most money?
A. This issue can be of concern where your choice for guardian has little money, but the other parent or interested person has much more. When these issues end up in court, the guardian needs to be able to show the ability to provide a reasonable level of financial security. If the guardian can show the ability to provide that level of financial security, the court should look past the financial differences. That the other person has a more favorable financial situation should not then tip the scales in his or her favor. Judges can also look at the age of the potential guardians, and whether they have similar religious/moral beliefs as the deceased parent, in making these decisions.
Q. Do I need to do anything besides write a will?
A. Generally, it is best if you also speak with your family and friends about whom you would want to have care for your child if you died. You may find that the person you would choose is unable or unwilling to take on that role. You may also find that one person is in a better position to care for your child than you originally thought. In addition, the lawyer who writes your will may have other suggestions. For example, what if you fear that your sister could try to become your child’s caretaker because of money? This could happen if your death resulted in payment of a wrongful death claim or life insurance benefits for the child. A lawyer could help you set up a trust or conservatorship, or advise you how to change your life insurance, or take other steps to protect your child from your sister’s greed.
Q. What does my child have to say about this?
A. The court is going to listen to the child’s preference if the child is over 14 years old. This does not mean that a 16 year old gets to pick her 22 year old boyfriend to be her guardian. The court still considers the parent’s choice and reasons, and the child’s best interests. The court is going to require that the person be someone who would otherwise be a qualified caretaker. If your child is old enough, you should have a talk about what each of you thinks is important, and why.
Conclusion
As parents, we worry about our children, especially about things that we have no control over. That is what makes the idea of what will happen once we are gone so frightening. This is also why it is so important to put our wishes in a will, and talk with family members and close friends, to let them know our wishes. This is even more important when there are specific people we do not want caring for our child. Please review the factors laid out above. Then think about whom you would want to care for your child if you died. If that is an important issue for you, you need to speak to an attorney.