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In case of death of both parents

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M

Midwestlady

Guest
What is the name of your state? Kansas

What can parents do to make their wishes known of their infant children in the event of their death? Can they draw something up to be binding and legal?
 


K

krispenstpeter

Guest
Simple answer is No. Children are not property. If both parents are killed or deceased, then the state takes guardianship of the children and will attempt to find suitable family members to either adopt or take over guardianship.

Blood family such as siblings, parents, aunts and uncles or other are first in line. If none exist or none are in a position to take guardianship, then the state will make the determination.

You cannot WILL your children. Period.
 

nextwife

Senior Member
Krispy, a question to further clarify the states handling of such situations.

Do you know if, in making determinations between equally qualified, interested family members, states have a preference "pecking order"? In other words, are certain relations at the top of the "go-to" list, and others further down?

Grandparents of child over aunts/uncles?
Maternal GPS over Paternal?
Aunts/Uncles over adult siblings or half-siblings of child? Or vice versa.
Married couples over single?
In-state relatives over out of state?
Relatives NAMED as desired guardians in estate planning paperwork over relatives NOT so named, and so on?
 

I AM ALWAYS LIABLE

Senior Member
My response:

Speaking only for California, California has no "pecking order". The dispositive and deciding factor in choosing a Guardian has always been "the best interests of the child". That could be an adult sibling, a grandparent, or an aunt. Marriage of the guardian plays no roll. A Child Protective Services agent will investigate all willing parties and make recommendations to the court.

California also jealously protects its jurisdiction. Therefore, when there's an in State relative, that person usually has a priority - - but, again, that's not the deciding factor.

IAAL
 
K

krispenstpeter

Guest
I have never seen such a 'pecking order' but maybe IAAL has. The most important criteria that I've seen used in such cases is the ability of the petitioner to care for the child.

Although that does not preclude grandparents, if a sibling and/or other relative of similar age and 'standing' petitions the court they will have a much better chance.
 

nextwife

Senior Member
Thank you both!

IAAL, so, at least for CA, and likely other states, in-state relatives WILL likely be given preference over out-of-state? I thought that was likely the case.

If there are two or more equally qualified candidates IN-STATE, will estate planning parental preference play any role at all? OR if both parents specifically EXCLUDE an apparently qualified candidate for their own reasons, will that bear any weight if there are other qualified parties available?

And Krispy, I am intriqued by your comment. The state would give preference to a qualified someone of comparable age to that of the parents, you say (remember, DH and I, for example, are the age of some grandparents)?
 
K

krispenstpeter

Guest
General statement Nexi.

Remember, if you and hubby kick off, then all parties who petition will be given the same consideration. HOWEVER, for a small child the balance will tip (fair or not) towards that person or persons who are best able to continue the parental relationship for a length of time that would preclude another trip to the court.

If you and hubby are in your 60s and you kick off, and there are two couples, one in their 30s and another in their 60s who petition the court for guardianship and are equal in all other respects, to whom do you think the balance will tip?
 

I AM ALWAYS LIABLE

Senior Member
nextwife said:
Thank you both!

IAAL, so, at least for CA, and likely other states, in-state relatives WILL likely be given preference over out-of-state? I thought that was likely the case.

MY RESPONSE: It's difficult to describe, but out-of-State relatives versus in-State relatives do not necessarily stand on unequal ground. The State will still makes it's final determination based upon the "best interests" standard; however, all things being equal, and with California's reluctance to divest itself of jurisdiction over the child, the scales could very well tip in favor of the in-State relatives. But, the court becomes very "picky" even if everything "appears" to be equal. E.g., it could very well come down to the issue if you had a speeding ticket 15 years ago! (exceedingly rare, but you get my point, which is that California REALLY wants to maintain jurisdiction over it's child citizen).



If there are two or more equally qualified candidates IN-STATE, will estate planning parental preference play any role at all? OR if both parents specifically EXCLUDE an apparently qualified candidate for their own reasons, will that bear any weight if there are other qualified parties available?

MY RESPONSE: No, "estate planning" plays no roll. A dead pair of parents may have specified that "Uncle Jim shall not be considered by the court as a suitable Guardian for little Jimmy" has no weight. Doing do so is an attempt to divest the court of its jurisdiction to decide "the best interests" of the child. In other words, and without reference to any "parole evidence" (outside sources, writings or influence), the court will decide who gets little Jimmy - - after everyone in the family who wants guardianship is investigated. Everybody's "hat" gets "thrown into the arena", and the only deciding factor by the court would be that parental custody would be detrimental to the child.

IAAL
 

nextwife

Senior Member
First, I do want to be clear that I wasn't trying to hijack this thread. The question comes up so much, that I've always wondered what guidelines were used. And if there is much in the way of guidelines other than financial stabilty and lack of criminal history. I presume those WITH a bond to the child have preference over relatives who don't?

As to myself, well, I was picturing a flight disaster or car accident as cause, but your scenario of us both "kicking" of old age when we get into our 60s is also possible (I'm in my late 40s, guy!). Hey, I just was curious, as we'd both want one our own (younger) siblings and NOT his kids (in their 30s but do not speak nicely of our daughter's Roma ethnicity or her adoption, or actually, anything west of New York state!) to have custody.
 
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frylover

Senior Member
Nextwife, would the stepkids even WANT your daughter, if that's the way they feel? I ask because I would assume the court couldn't force someone to take custody of kids they don't want. (And yes, I know what they say about assuming! :D )

I've already made up my mind--I refuse to die because the people I consider to be mature, responsible guardians wouldn't stand a chance in court :D
 
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nextwife

Senior Member
Well, I only worry about his kids because we have a lot of insurance policies (and accidental death policies would bring a windfall), so whichever household she goes to would see a decent cash inflow for her care.

Yup, refusing to die IS the best solution.
 
K

krispenstpeter

Guest
Well, I only worry about his kids because we have a lot of insurance policies (and accidental death policies would bring a windfall), so whichever household she goes to would see a decent cash inflow for her care.
(said with luv)

Then that would be your fault Nexi. Listen, if you want to make sure that money is not going to corrupt and that the children go to the best parents available who want them regardless of the 'windfall' simply put the policies into a trust for the children and appoint a trustee to oversee the distribution.

Do some estate planning now to head this problem off.
 

nextwife

Senior Member
Sweetie, of COURSE it goes into a trust! My brother will be trustee (secirities attorney). I have no doubt he will look out for her financial interests. I just meant that there will be a nice monthly income for daughter's
support.
 

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