If I die who gets custody of my child under Georgia child custody law?   It is scary how often we hear this question from concerned parents.

Concerns About the Other Parent.

Sometimes the child’s other parent would be a disaster as a custodian of a child.  They might be a substance abuser, mentally ill, emotionally cruel, or just plain evil.  Sometimes the other parent has never been involved with the child.  If I die who gets my child?  The law generally views the surviving parent as entitled to custody of your child if you die.

Georgia law states “Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the judge, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s best interest and welfare.”  O.C.G.A. § 19-9-2.  But case after case finds in favor of the surviving parent if there has not been a termination or forfeiture of parental rights.

What should you do if you live in fear of your child going to live with the child’s other parent if you die?  You and your attorney should come up with a plan specific to your case.  Typically, such a plan would include at least the following:

• nominating a guardian and a successor guardian for your child in your Last Will and Testament, and going further to specifically state in the Will that it would be harmful for your child for the other parent to have custody of the child.  This is not the time for a home-grown Will; you should have a qualified attorney familiar with both estate planning and family law work with you to draft the document.
• making sure that your child has ample opportunities to develop meaningful relationships and strong bonds with the individuals you have named as guardian and successor guardian.
• creating an “evidence packet” for your guardian and/or successor guardian to use in Court to fight (if necessary) for custody of your child in the event of your death.  This evidence packet should include certified copies of any applicable court records or transcripts that might be helpful to the case, names and contact information for individuals who are first-hand witnesses to behavior or events that led to your concerns, certified medical records, police reports, photographs, affidavits, copy of your Last Will and Testament and information about where the original is kept, signed and notarized statement from you providing background information and details, etc.  Your attorney can help make sure that the evidence you collect is as bullet-proof as possible — you want to arm your child’s advocate with evidence that would be admissible in Court in a proceeding about the child’s custody.
• keeping your “evidence packet” up to date with current contact information on your live witnesses and current documents.  Documents should be certified copies whenever possible.
• providing funds for your nominated guardian and/or successor to use to fund a Court case, especially if they would not otherwise be able to afford it.   Providing funds for this purpose in your Will may not be sufficient, as probating the Will takes time.  Setting up a joint checking or savings account with the guardian with sufficient funds to get them started is one possibility.  Prompt legal action may be required.  A modest-sized term life insurance policy naming them as beneficiary is another option to provide funds in a relatively short period of time.

Concerns About Third Parties.

Sometimes the question “if I die who gets my child” reflects concern about third parties.  Perhaps your child’s other parent is already deceased, and your worst nightmare is your mother-sister-cousin or in-laws getting custody of your child.  This is a somewhat easier case than the case of the surviving parent, but the advice is still the same.  Work with your attorney to make a plan.  The plan would include, at a minimum:

• nominating a guardian and successor guardian for your child or children in a valid Last Will and Testament.    In the Will, spell out that under no circumstances should person X, or persons X and Y, be awarded custody of your child.
• making sure the guardian and successor have the opportunities to develop strong and healthy relationships with your children while you are alive
• create the “evidence packet” described above.  A notarized affidavit or at least a handwritten statement, signed and dated, fully explaining your concerns could be helpful.  While such a statement might not be admissible in Court, perhaps it could be considered by a guardian ad litem or other advocate for the child in the event of a custody fight.
• providing funds for the guardian and/or successor to go to Court if needed to fight for your child.

Don’t engage in risky behavior.

If you are concerned about who gets your child if you die, then do your best to stay safe and healthy!   It is a no-brainer that you should do your very best to stay around until your children are grown so it never becomes an issue.  Think honestly about whether there are changes you should make in your lifestyle or choices that increase your odds.  This might mean saying no to skydiving, cave-diving, smoking, riding motorcycles, and a host of other non-mandatory behaviors that increase your risk.

Don’t live in fear.

Ultimately, there are many things outside our control  If you are concerned about who gets your child if you die, then be proactive and make your plan.  Be serious about your making your documents, putting together your evidence packet, and funding the fight.  Review your packet once a year to make sure no updates are needed.  Then live your life without fear and enjoy your children!

©Karen S. Hindson, Hindson & Melton LLC – April 19, 2013