Who is the First Person to Get Custody of a Child if the Parents Pass Away?

By law, biological or adoptive parents have legal guardianship over their own minor children, unless a court removes this authority or both parents die. It may seem like a rare event that both parents would die while the child is under the age of 18, but it happens more often than you may think.

Given this, you may wonder who would get custody of your children should you and the other parent die. If you have minor children, it is always a good idea to have an estate plan in place. That way, you can choose guardians for your children in the event of your death.

Otherwise, guardianship will be determined by state law. As a parent, you may or may not agree with the state’s choices, which is why having a will is so important. Guardianship is something you would want to have spelled out in a will or other legal form.

Where will your child go if you die before they become an adult? Here is a look at the Tennessee statute which spells out the priority of persons to be considered for appointment as guardian:

Who Will Be Your Child’s Guardian according to Tennessee statute?

According to Tennessee Code Annotated 34-2-103, the court shall consider the following persons for guardianship in this order:

• Any surviving parent of the minor child,
• Anyone designated by the parent in a Will or other written document,
• The minor child’s adult brothers or sisters,
• Closest relative(s) of the minor child, and
• Any other person the court deems suitable for guardianship.

Eligibility

Guardianship is not taken lightly. The court must always consider and determine what is in the best interests of the minor child, which is the primary consideration when deciding who to appoint as guardian. Other important factors include the requirement that the potential guardian be at least 18 years old, be emotionally and physically fit to care for the child, and have the financial means to support the child. The guardianship decision may involve the child in some cases. If the minor child is old enough (at least 12 years old), they may be able to tell the court about their reasonable preferences for a guardian.

If none of the above parties are available, and nobody comes forward to be considered for guardianship, the state will take legal responsibility for the minor, which means the child will end up in the foster care system. The court will want to avoid this, but if there is no family or friend to care for the child, then this may be the only viable option.

Seek Legal Help Today

If you have a minor child, you need to be prepared. Anything can happen. Who will take over the care of your child after your death?

Do not leave anything to chance. Contact Brentwood estate planning attorney Judy A. Oxford, Attorney at Law, to understand your legal rights and responsibilities. To schedule a consultation, contact us via (615) 791-8511 or online here.