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Wrongful Death

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Roses253

Junior Member
What is the name of your state (only U.S. law)? Colorado

In a wrongful death case for a child who lost their mother and the father is not in the picture....does having a guardian vs adoptive parent change the amount of damages?

For example if one argument for economic damages is the loss of parental services, i.e. those services that would have been performed by his mother. If I adopt the child (currently have permanent guardianship of the child) could it be argued that those economic damages are no longer recoverable because he has a mother who is legally responsible for performing the duties and those damages are no longer recoverable.
 


adjusterjack

Senior Member
Yes, I suppose the defense could argue that along with many other things in an effort to mitigate the potential payout.

Whether a jury buys it or not is anybody's guess.

Wrongful death cases are incredibly complicated due to the many variables involved.

Why are you asking the question and why aren't you asking it of the lawyer who is handling the wrongful death claim for the plaintiffs?
 

Roses253

Junior Member
Why are you asking the question and why aren't you asking it of the lawyer who is handling the wrongful death claim for the plaintiffs?
Our wrongful death attorney is trying to convince us to wait to adopt until after the wrongful death case takes place in 6 months to 1.5 years but currently it is optimal time to adopt this child based on abandonment of the father.
 

LdiJ

Senior Member
Our wrongful death attorney is trying to convince us to wait to adopt until after the wrongful death case takes place in 6 months to 1.5 years but currently it is optimal time to adopt this child based on abandonment of the father.
Then its probably in the child's best interest that you wait. You already have permanent guardianship, its not like dad can just come and snatch the child away from you.
 

Taxing Matters

Overtaxed Member
Then its probably in the child's best interest that you wait. You already have permanent guardianship, its not like dad can just come and snatch the child away from you.
No, but if the father reenters the child’s life that could kill the abandonment claim and doom the adoption if the father does not want to consent to adoption.

Frankly, I’m highly skeptical that having a guardian versus adoptive parent would make any difference in damages. Either way there is an adult there who fills the role of caring for and supporting the child. The label you put on it does not make a difference. I don’t see most Colorado jurors compensating the child more over that. I certainly wouldn’t give an extra penny over the difference in labels. What matters is what the child has lost compared to what the child now is receiving, whatever label you put on the child’s new caretakers.
 

LdiJ

Senior Member
No, but if the father reenters the child’s life that could kill the abandonment claim and doom the adoption if the father does not want to consent to adoption.

Frankly, I’m highly skeptical that having a guardian versus adoptive parent would make any difference in damages. Either way there is an adult there who fills the role of caring for and supporting the child. The label you put on it does not make a difference. I don’t see most Colorado jurors compensating the child more over that. I certainly wouldn’t give an extra penny over the difference in labels. What matters is what the child has lost compared to what the child now is receiving, whatever label you put on the child’s new caretakers.
I see your point but I always hate to second guess a poster's attorney. Its possible that the attorney is even advising that because dad has to be served for an adoption and the attorney doesn't want dad brought into things while the wrong death case is being heard...doesn't want dad to try to take that over and get his hands on the child's money. I could see it being safer to get the award and put it into a trust fund BEFORE getting dad involved in an adoption.
 

Roses253

Junior Member
No, but if the father reenters the child’s life that could kill the abandonment claim and doom the adoption if the father does not want to consent to adoption.

Frankly, I’m highly skeptical that having a guardian versus adoptive parent would make any difference in damages. Either way there is an adult there who fills the role of caring for and supporting the child. The label you put on it does not make a difference. I don’t see most Colorado jurors compensating the child more over that. I certainly wouldn’t give an extra penny over the difference in labels. What matters is what the child has lost compared to what the child now is receiving, whatever label you put on the child’s new caretakers.
Yes, this is the adoption attorney’s take on it because if you are a deadbeat dad where would you be if you saw your child was receiving money in a wrongful death case. It will likely start the abandonment claim all over again. As a guardian I think I have all of the same rights/responsibilities that I would have as an adoptive parent except the father no longer has any rights.
 

adjusterjack

Senior Member
Yes, this is the adoption attorney’s take on it because if you are a deadbeat dad where would you be if you saw your child was receiving money in a wrongful death case. It will likely start the abandonment claim all over again. As a guardian I think I have all of the same rights/responsibilities that I would have as an adoptive parent except the father no longer has any rights.
Then go ahead with the adoption as fast as you can.

The lawyer is thinking about money.

You think about what's best for the child even if it means less money.
 

Roses253

Junior Member
Is it possible to loose vs win due to adopting the child rather than remaining the permanent guardian? I’m thinking the wrongful death attorney just wants a paycheck sooner than later and is a bit greedy but I don’t want to end up upside down in this either. To me if the wrongful death attorney thought we had a good case before adoption then why would it differ after adoption? This child still lost his mom and the guardianship that’s in place currently or upcoming adoption is taking place due to the mother’s death.
 

Roses253

Junior Member
So, you're thinking about the paycheck, too.

Sigh.
Nope, I’m not. I told the wrongful death attorney that the fact that this child has a safe place to live forever is more important than any money he could ever receive in my opinion. I think he’s upset with me because I told him we are not waiting on the adoption. I just can’t afford to come out of it owing money that I don’t have.
 

Taxing Matters

Overtaxed Member
I see your point but I always hate to second guess a poster's attorney. Its possible that the attorney is even advising that because dad has to be served for an adoption and the attorney doesn't want dad brought into things while the wrong death case is being heard...doesn't want dad to try to take that over and get his hands on the child's money. I could see it being safer to get the award and put it into a trust fund BEFORE getting dad involved in an adoption.
The OP’s attorney has all the facts whereas I do not. There may be reasons to wait for the adoption that are not apparent in this thread so far. But if the attorney’s sole argument for waiting is that having the OP as guardian rather than adoptive parent will increase the potential damage award, I disagree with the attorney on that. If the attorney has some other reason for waiting, that might change things but I’d want to hear his/her reasoning for it before offering an opinion. If waiting might increase the award (which as I say, I find not very persuasive) but could put the adoption in potential peril, the OP will have to decide which matters more: becoming the adoptive parent or potentially getting a little extra cash for the kid in the judgment.
 

LdiJ

Senior Member
Is it possible to loose vs win due to adopting the child rather than remaining the permanent guardian? I’m thinking the wrongful death attorney just wants a paycheck sooner than later and is a bit greedy but I don’t want to end up upside down in this either. To me if the wrongful death attorney thought we had a good case before adoption then why would it differ after adoption? This child still lost his mom and the guardianship that’s in place currently or upcoming adoption is taking place due to the mother’s death.
Have you asked the attorney what his reasoning is on the matter? Have you asked him what he thinks is the potential risk if you do not wait? I really think that you need to know WHY the attorney thinks you should wait. I can think of some reasons (other than the attorney wanting a paycheck sooner) which mostly would include dad wanting to get his hands on the money if he gets wind of it before you have it tied up into a trust. In order to get his hands on the money, he would have to get custody of the child. Therefore he might fight you tooth and nail once he is served.
 

Roses253

Junior Member
Have you asked the attorney what his reasoning is on the matter? Have you asked him what he thinks is the potential risk if you do not wait? I really think that you need to know WHY the attorney thinks you should wait. I can think of some reasons (other than the attorney wanting a paycheck sooner) which mostly would include dad wanting to get his hands on the money if he gets wind of it before you have it tied up into a trust. In order to get his hands on the money, he would have to get custody of the child. Therefore he might fight you tooth and nail once he is served.
Yes, I’ve asked him and the response I get is: If you adopt, it could be argued that those economic damages are no longer recoverable because he has a mother who is legally responsible for performing the duties and those damages are no longer recoverable.

The father has to be served for the child to receive money also so he would know about it and if we adopted first the father doesn’t have to be served since he’s no longer Dad.
 

LdiJ

Senior Member
Yes, I’ve asked him and the response I get is: If you adopt, it could be argued that those economic damages are no longer recoverable because he has a mother who is legally responsible for performing the duties and those damages are no longer recoverable.

The father has to be served for the child to receive money also so he would know about it and if we adopted first the father doesn’t have to be served since he’s no longer Dad.
If I were in your shoes I would ask for a second opinion from another attorney in your area.
 

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