Congrats on wanting to move abroad with your child. You are giving your child the world and they will thank you. But before you take off, make sure you take care of some basics to ensure that if something happens to you and/or your partner, that your child is taken care of.
One of those key MUST do thing is to pick a legal guardian for your child.
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So, what is a legal guardian, and why do you need one for your child?
A legal guardian is an adult designated to care for a child in case both parents die before that child reaches adulthood. None of us want to think about our deaths (although we may wish death on our baby’s daddy), the reality is you need to choose a guardian so the courts don’t do it for you, because NO court is going to let a minor child take care of him or herself and would you really want that?
If you think your mother, sister, cousin etc will receive custody of your child, just because, YOU DON”T KNOW THE US LEGAL SYSTEM. You need to specifically name a person to be your child’s legal guardian your will. Yes, your mom or sister or cousin can you to court and request custody but that does not neccesarily mean they will get it and your child could end up in foster court while a judge decides who is best to take care of your child. Unless you want this to happen – Pick a legal guardian for your child.
If you and your spouse or partner have separate wills, it’s best to name the same person as the guardian of your child to avoid conflicts. Many parents also name an alternate guardian in case their first choice is unwilling or unable to accept the responsibility.
How do I choose the right person?
This is such a personal choice. It was probably one of the toughest decisions I ever had to make, because I never wanted to think about someone else raising my daughter and if I had my way, I would be with her forever. The reality is that I am going to die one day and so are you, so Sis, ya gotta be responsible.
I had to come to terms that NO ONE would raise Ruth like me, but decide on the person who would come pretty close.
I then made a list of folks I thought might make a great choice. It was tough. My first choice was my mom, but she is over 70 so the realities are that should I die, in a few years my daughter might need another guardian should my mother die or take ill.
Make a list.
Sit down with your partner (if you have one) and discuss the advantages and disadvantages of each person. Take your time.
Here are a questions I asked myself:
- Whose parenting style, values, and religious beliefs most closely match your own?
- Who is most able to take on the responsibility of a caring for a child – emotionally, financially, physically, etc.?
- Whom does your child feel comfortable with already?
- Would your child have to move far away, and would that pose any problems?
- Does the person you’re considering have other children? If so, would your child fit in or get lost in the shuffle?
- Would the person have enough time and energy to devote to your child?
I narrowed my list to a 3 people. You may be torn between 3-5 people, so I suggest you talk to them about
For me these conversations were very revealing and help me finalize my decision. about being named guardian of your child. Don’t be upset of some folks don’t want to assume the responsibility. Raising a child isn’t easy and would you really want someone raising your child who isn’t up for the challenge.
Guardianship can be flexible over time. If you really want your parents to be your child’s guardian now but fear that they’ll grow too old to handle the job, you can specify that they be designated guardians for a set period of time (until your child is 10, for example), after which responsibility passes to a sibling or friend. A switch like this can be difficult on your child, though, so carefully consider the ramifications.
Take the time to document your hopes and expectations for raising your child in a letter and attach it to your will. Consider things like what kind of education you have in mind and what religious beliefs and values you think are important. Reread the letter every year or two and update it if necessary.
Can I name a different guardian for each of my children?
Most people want their children to stay together, so they choose the same guardian for all, but if you want to, you can name a separate guardian for each child. You might consider this option if your children are far apart in age or if each one has a special attachment to a different person.
For example, your daughter may be particularly close to her grandparents, while your son feels very attached to his uncle. This kind of arrangement can also work if you have children from different marriages who have their own sets of relatives and friends. The most important thing is to pick the person who’s best able to meet each child’s needs.
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Should I name a different person to oversee the property I leave to my child?
The choice is yours. Some parents name one person to be both the personal guardian and the property guardian or trustee, overseeing their child’s finances. This can simplify things and give the guardian access to money when it’s needed without having to check in with someone else.
Other families separate the responsibilities. “We know the best home for our children would be with my sister,” says Patti, a mother of two from Denver, “but we chose my father to manage the property because he has a real handle on finances, and I trust him to make solid decisions. Besides, my sister has kids of her own and doesn’t have the time to really think about it.”
Consider how well your personal guardian and property guardian get along. If they have a good rapport, the separation of roles could work well. Problems are bound to arise, so choose two people who can work on solutions together.
What if I’m not married to my partner? What will happen to our child if I die?
There are three circumstances to consider here: You and your partner are the biological parents of the child; you are the biological parent but your partner isn’t; or neither of you is a biological parent.
If you’re both the biological parents, then you each have the presumptive right to be the guardian of your child if the other parent dies. In this case, a judge would automatically grant custody to a biological parent. But the surviving parent could step forward and say he or she is unable or unwilling to care for the child – one more reason to name a guardian in your will.
If one partner is the biological parent and the other is not, the nonbiological parent only has an automatic right to be guardian if he or she has legally adopted the child. If that’s not the case, and if the nonbiological parent isn’t named in the will as the guardian of the child, the judge will not automatically grant guardianship to that person..
Adoptive parents have the same presumptive rights as biological parents. That is, the judge will automatically grant custody to an adoptive parent if the other parent dies.
What if I don’t want my child’s other parent to be his guardian when I die?
If you’re separated or divorced or never married to the biological parent of your child you may feel that your child’s other parent shouldn’t have custody if you die, but unfortunately the law doesn’t support this assertion
A judge will almost always grant custody to a biological parent unless the surviving parent has legally abandoned the child by not providing for or visiting the child for an extended period or is clearly unfit as a parent. In most cases it’s difficult to prove that a parent is unfit unless he or she has serious problems such as chronic drug or alcohol use, mental illness, or a history of child abuse.
That being said, you could explain your case in a letter and attach it to your will. The judge will take all information into account when making a guardianship decision.
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