Parents who have sole custody of their minor child often wonder who will take care of their child if they should die or become incapacitated.

Some parents in this situation think that because they have sole custody of the minor child that the other parent won’t get custody of the minor child no matter what happens. However, it is important to note the difference between custody of a minor child and parental rights. These are two different concepts under California law.  A parent may not have custody of or any custodial rights over their minor child, but only a court order can terminate the parental rights of a parent of a minor child.

California law recognizes parental rights and favors guardianship or custodial rights by a child’s natural parent.  So, when one parent dies who had custody of their minor child, custody of the minor child is automatically given to the surviving parent. This is true even when the surviving parent had no custodial rights while the deceased parent was alive.

Despite the way the law works, as noted above, if a parent wishes to avoid giving custody of the minor child to the other natural parent, it is still a good idea to create a will naming someone else as guardian. There are two reasons for this.   First, if the non-custodial parent predeceases the custodial parent, the custodial parent’s will is already drafted naming their minor child’s guardian.  Second, the other non-custodial parent may waive his or her rights to custody or, if the other parent is unfit, the guardian is already named and that named guardian then has the authority to fight for custody of the minor child. A properly drafted will can include several provisions to make it easier for the named guardian to obtain guardianship instead of an unfit parent.

Ultimately, drafting a will with a guardianship provision will give that parent peace of mind and may also save their minor child from unnecessary tug-and-pull that occurs in a custody battle. Anyone with concerns regarding guardianship of their minor child and how it relates to estate planning should contact Chilina Law Firm or another law firm practicing estate planning for advice on how to properly draft a will meeting these concerns.   

Authored by Karen Chilina and Co-Authored by Greg Chilina

Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email atinfo@chilinalaw.comor visit the Chilina Law Firm at Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.

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