Child Custody upon parent's death- - -

There can be a bunch of variations that could happen here. But one scenario would be as follows:

christaleigh said:

The mother dies and the father's in a coma. The only other living relative is overseas and not easily reachable. Three children are orphaned, basically and the only will, which was made when the first child was born, names the overseas relative and a non-related person as guardians.

The will is valid, unless there is documentation that it has been revoked. Probably a probate or family court would infer that the guardianship extends to the unborn children, if the situation is not covered by statute. The State would step in until a guardian was discovered.

Who would look for a will in the case that both parents are gone?

Attorneys usually follow obituaries and would realize that a client has died from that. Then the attorney would start taking steps to deal with the sitaution. If no one else knows about the will, it will probably just disappear and nothing will happen.

Would that be a police investigation?

For what? To find a will? No. However, there would be investigation by the government (Child & Family Services) to find appropriate guardians for the children, including searching for grandparents and aunts and uncles.

Then, once the will is found, who is the responsible agency for tracking down the guardians named?

This one depends on a lot of different facts. The will is admitted to either probate or family court (if there are no assets and the only issue is the children, some states might deal with this situation in family court). The court, in consulatation with others, will begin to determine where things go from there

Would there be legal proceedings, or would the named parties just have to accept the responsibility?

This is all about legal proceedings.

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One suggestion is to go down to your local probate court and talk to the clerk and see if he or she can suggest someone local to talk with.

Personally, your question begins to remind me of a lawschool exam, only not enough layers.

Jim Clark-Dawe

What jclarkdawe said, with one additional tidbit: during the time that the legal proceedings were going on, the court would have to appoint someone as temporary guardian of the children. They might appoint the local Child and Family Services (or whatever it's called in that state) as guardian, basically making the kids temporary wards of the state; or they might appoint an individual person guardian ad litem (who that individual might be will depend on state law). So yeah, as jclarkdawe said, go to your local courthouse--family court or probate--and get talking with some judge's clerk. Tell them you're writing a book. I've had great success with that; everybody loves to talk about their jobs, so preface your questions with phrases like "in your experience," "in cases like the ones you handle," etc., and let them talk...

christaleigh said:

Would there be legal proceedings, or would the named parties just have to accept the responsibility?

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I just wanted to address that last question. No, nobody would "have to" accept responsibility just based on a will. A will can't force somebody to do something they don't want to, for one thing; and for another, a will can't force the court to do something that violates state policies. Say your will gives custody of your minor children to a known pedophile--no, the court's not going to enforce that. It's against the state's policy of protecting children. Any custody issue in a will is still going to be subject to the court, and they're not going to give children to a pedophile or to someone who (as in your example) doesn't want them. The court's going to look to the best interests of the children. This is why I suspect you want to ask a family court judge, not a probate one--it's going to be family court that handles that decision, or "orphan's court" if your state has such a thing, even though probate will handle all the rest of the will.

Depending on the age of the children, they might even be emancipated. It's rare, but it could happen.

LloydBrown said:

Depending on the age of the children, they might even be emancipated. It's rare, but it could happen.

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True, although if the parents left them any assets, my guess is the court would appoint a guardian for those assets, rather than giving, say, $50,000 or a house or whatever the asset was to an emancipated 15-year-old... A guardian for those assets (with a fiduciary duty to manage the assets in the interests of the child) could be appointed whether or not the child was emancipated, but my guess is that emancipation would be unlikely, and all the more so if there were assets and if the parents had indicated who they wanted to care for their children.

christaleigh said:

would the courts be less likely to grant custody to the female named in the will, who is single and lives overseas full time? She would be taking the children to live with her in a foreign country as US citizens, so would the courts want to know about her living conditions, how she plans to educate them, etc?

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They look into the "best interests of the child," so yes, they would want to know about her living conditions, her job and home life, education plans for the kids, how the infrastructure is in that country (example: if a wonderful, rich, well educated, warm-hearted aunt of the children lives in Afghanistan, the court's decision will be very different than if she lives in France), etc. The fact she's single will be considered (the court would wonder, for example, what would happen to the kids if SHE died too), but if she were married, the court would also consider things like, who is her spouse? What's he like, does he want the kids, does he have any criminal convictions, etc. (in other words, is he any threat to the kids).

You can also expect them to look quite closely at the relationship between the kids and this person named in the will; if, for example, the kids haven't seen her in years, that would weigh against her getting custody of them, all the more so if there were someone they DID have a relationship with (such as a grandparent) who wanted custody.

Basically, a kid is not property, so a will can't give a kid away. All it can do is express the parent's wishes for the kid; it can't control the court's decision. If the will says "the kids go to my best friend, Irma," but someone else--a grandparent, stepparent, aunt/uncle, older (adult) sibling, whoever--seeks custody of the kids, the courts are going to go with the best interests of the kids first, and the will second. If the court finds that living with Irma is in their best interests, great. But if it doesn't, well, screw the will.

I saw a thread you might be interested in on Google Answers:
https://answers.google.com/answers/threadview?id=553355

Maryn said:

Uh, I'm not an attorney, but if the father is living (although comatose) isn't there a legal presumption of the possibility of recovery? So while the kids' placement would very probably go as people have suggested, unless the father also dies his will isn't going to enter into the equation.

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My god, I can't believe I didn't notice that detail!!!
You're right, of course; the father's will might as well not even exist until he dies--it has absolutely zero legal effect until he's dead.
But the mother's will, of course, kicks in as soon as she dies. Presumably each parent would have put something in there about what they wanted to happen to their children in case of death. So, the court will look at what the mother wanted--and there's some possibility that the court would consult the father's will just to see if it agrees on that point, although the court is under no obligation to do that; it's just that, if that's the only written record of what the father would have wanted for his kids, they might look at it. It would have no legal weight at all in and of itself, but the court might be able to consider it if there were no other evidence of what the father wanted.

But, yes, if the father's still alive they're not going to give permanent custody of his children to anybody. They do still have to figure out what to do, of course--i.e. who will be the legal guardian of these kids. They'll make someone their legal guardian, and that order will stay in place until/unless the father comes out of the coma. (By the way, they'll also have to appoint someone to be guardian of the father, since he can't manage his own affairs while he's in a coma: someone to pay his bills, handle his assets and so on.)

If the father is alive, however, I highly doubt the court would give guardianship of his kids to someone who lives overseas; for that to happen, my bet is that (1) the overseas guardian would have to be closer to the kids and provide a better environment for them than any possible guardian here in the US--so this might happen if, say, the parents were from another country and had little or no family here, or if what little family they have here just didn't have the resources/desire to care for the kids; AND (2) the foreign country would have to be a signatory of whichever convention it is that makes countries cooperate on child custody issues (i.e. the judge would have to be sure that his/her custody order would be respected by that foreign country's courts: if he gives temporary custody of the kids to the guardian pending the father's recovery, and the father recovers, the court needs to be sure that country's courts will force the guardian to give the kids back). If you're talking about a western European country or Canada, no problem. I think Japan may also be a signatory, though I'm not sure. But anywhere else, you may have a problem.

When the father wakes up, presumably someone will inform him of what's happened and where his kids are; if he's okay with the arrangement it'll stay in place, but if he objects--say, if he wants the kids cared for by someone else--there would need to be a hearing. However, it's still going to be the best interests of the child that the court looks at the most; the father's desires aren't going to overrule a court order for guardianship unless/until the father is seeking custody himself. Obviously, if he's just woken up he won't be very functional; even if there's no brain damage, after three days of immobility your muscles start to atrophy, so if he's been out long enough for the court to have given guardianship of his children to someone else, you can bet he will need extensive physical therapy to recover anything like his former abilities (walking, caring for himself etc.). So it's going to be a while before he could seek custody himself.

Maryn said:

Uh, I'm not an attorney, but if the father is living (although comatose) isn't there a legal presumption of the possibility of recovery? So while the kids' placement would very probably go as people have suggested, unless the father also dies his will isn't going to enter into the equation.

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Court's also going to look to see whether there is a durable power of attorney, which is for this type of situation. But basically, the court will look at everything available to determine what to do. Remember recent case of blond bimbo in Florida and Bahama?

Jim Clark-Dawe