Many families today include unmarried partners, blended families and stepparents who help raise children but are not their legal parents. While these families may function like any other loving household, the law may view the situation very differently if the child’s legal parent passes away.
Consider Jane and Mark. They have been together for 10 years, and Mark has helped raise Jane’s daughter, Emma, since she was 3 years old. He attends school events, helps with homework and is the only father figure Emma has known. However, Mark never adopted Emma.
If Jane dies unexpectedly, Mark does not automatically receive custody of Emma. Even though he has acted as her parent for years, California law generally recognizes legal parents, not simply parental relationships based on caregiving. If Emma’s biological father is alive and his parental rights have not been terminated, he may have the strongest legal claim to custody even if he has had little involvement in her life.
If there is no surviving legal parent, the court may consider petitions from grandparents, aunts, uncles, adult siblings or even Mark. The judge’s primary concern will be the child’s best interests, but the process can be stressful, expensive and emotionally difficult for everyone involved.
The same issue can arise in blended families. Imagine Sarah and Tom, who have been married for eight years. Sarah has a son, Ethan, from a prior relationship. Tom has helped raise Ethan and treats him as his own child, but he never completed a stepparent adoption.
If Sarah dies, Tom may discover that being a loving stepparent does not automatically give him legal custody rights. Depending on the circumstances, Ethan’s biological father or other relatives may have legal claims that Tom must address through the court system.
Fortunately, parents can take steps to help protect their children. One of the most important is creating a comprehensive estate plan that includes a nomination of guardian. While the court makes the final decision, a written guardian nomination gives the judge clear guidance about who the parent wants to care for the child.
For example, if Jane’s estate plan specifically nominates Mark as Emma’s guardian, the court will typically give serious consideration to her wishes. Although it is not an absolute guarantee, it can significantly strengthen Mark’s position.
In some situations, adoption may be the best option. If Mark had legally adopted Emma, or if Tom had completed a stepparent adoption of Ethan, they would generally have the same legal rights and responsibilities as any other parent.
Failing to plan can leave a child’s future uncertain and create conflict among loved ones during an already difficult time. If you are raising a child with a partner who is not a legal parent, or if your spouse has not adopted your child, reviewing your estate plan can help ensure that your wishes are known and that your child remains in the care of the people you trust most.
Send your questions to ccolan@colanlegal.com and use “Alpine Mountaineer estate planning question” as the subject. We’ll answer your questions in our upcoming issues. This article is provided by your local estate planning attorney, Corina Colan. The Law Office of Corina I. Colan / (909) 265-3315 / www.colanlegal.com
0 Comments