One Death, One Courtroom, One Child – and a Lesson Every Parent Needs to Hear

You might think that if something were to happen to you, the other parent would take over and everything would sort itself out.

In many families, this is indeed the case. However, it’s not always so straightforward.

Real life can be quite chaotic. Parents may separate. Relationships can become strained. Custody battles can extend for years. And when a tragedy strikes amidst all this turmoil, children may find themselves in a legal gray area while adults and courts rush to determine the next steps. A recent case in Michigan illustrates just how complex these situations can become. It also highlights a significant gap in estate planning that many parents overlook, which a simple will cannot address.

When a Parent Passes Away, the Solution Isn’t Always Clear

The Michigan case known as Sartor v. Johnson involved a child whose parents, Dwight and Renee, had been embroiled in years of bitter custody disputes. Over time, the court consistently limited Renee’s parenting time due to worries about her alcohol consumption, anger management issues, and mental health challenges. Ultimately, Dwight was granted sole legal and physical custody, while Renee was restricted to supervised visitation.

In 2023, relatives temporarily gained guardianship of the child after Dwight left town, raising concerns about the child’s medical treatment. Soon after, that guardianship was revoked, and the child returned to Dwight’s custody. Then Dwight passed away.

At that time, Renee, who hadn’t seen the child for over two years, pursued full legal and physical custody.

According to Michigan law, similar to most states, custody is granted to the surviving parent when one parent passes away. However, if being with that parent isn’t in the child’s best interests, custody can be awarded to someone else. After listening to testimonies from family members and examining the situation, the court concluded that placing the child with the mother was not in the child’s best interests. Consequently, custody was given to the child’s paternal aunt and uncle, a ruling that was confirmed on appeal.

In summary: Even though the law tends to favor the surviving parent, courts still evaluate the evidence to determine what truly benefits the child. A favorable outcome isn’t assured without proper documentation to back it up.

However, that legal struggle was just one aspect of the issue. There was also a more pressing concern that could impact any parent in any family scenario.

The First 24 Hours: Who Holds the Legal Authority to Assist Your Child?

In the Michigan case, the child suffered from a chronic medical issue that necessitated regular medication and IV infusions every four to six weeks. When Dwight left town and relatives took over, they had to navigate the court system to gain guardianship just to have the legal power to make medical choices.

Consider what that implies in real life.

If something were to happen to you today, like a car accident or an unexpected medical situation, or even a brief period of incapacitation, who currently has the legal right to care for your child? Not in a week, after the court processes are completed. But right now.

Without proper planning, the answer could very well be no one. Even the most reliable relative might not be able to:

● Give consent for medical treatment

● Access your child’s medical records

● Enroll your child in school

● Make essential daily decisions that are routine yet necessary.

In certain situations, children may be temporarily placed with unfamiliar individuals by child protective services while the courts determine who has the legal authority to intervene. Even when emergency guardianship proceedings are expedited, they can take anywhere from a few days to several weeks. During this period, your child’s medical care, education, and daily necessities remain uncertain.

Conventional estate plans do not fill this void. Appointing a guardian in a will only becomes effective after a probate court process, which can last weeks or even months. This does not provide any assistance in the critical hours and days following an emergency.

The key takeaway: The time between “an incident has occurred” and “the court has granted someone the authority to assist” can extend for weeks. Your child should not have to endure uncertainty during this time.

This is precisely the issue that a Kids Protection Plan aims to address. Let’s explore what that entails.

The Plan Most Parents Don’t Realize They Need

A Kids Protection Plan is a thorough strategy specifically crafted to tackle the immediate, real-life scenarios that occur when a parent is unavailable. It extends far beyond simply naming a guardian in a will.

With a Kids Protection Plan, you can:

● Designate both short-term and long-term guardians for your children

● Provide trusted caregivers with immediate legal authority to act, without having to wait for a court

● Ensure your child is not placed with strangers or anyone you wouldn’t select

● Guarantee that medical care and daily necessities can be managed without delay

The key takeaway: A will appoints a guardian for the future. A Kids Protection Plan safeguards your child right now, in the crucial first hours of an emergency, before any court involvement. This ensures maximum stability for your child, preventing them from being placed in the care of strangers.

However, the Michigan case also emphasizes one more crucial aspect of this plan that is equally significant.

What if the Other Parent is the Person You’re Worried About?

In this situation, the deceased father had dedicated years to documenting his concerns regarding the mother through legal proceedings. This evidence ultimately played a crucial role in convincing the court that placing the child with relatives was in the child’s best interests.

Unfortunately, most parents aren’t as lucky. Many parents haven’t invested years in litigation to create a documented history. Without such a record, a court may find itself with very little information to guide its decision on who should raise your child.

A confidential guardian exclusion affidavit, which is part of a Kids Protection Plan, enables you to articulate your concerns in writing now, while you are still able to explain them. This document remains private and is not made public. It stays with your planning documents and only comes into play if a court needs to decide who should care for your child.

In this document, you can clarify:

● Why certain people should not be appointed as guardians

● The background and context that a judge needs to grasp

● Any particular issues or evidence that back up your viewpoint

Without this kind of information, your viewpoint simply won’t be included in the record.

The key takeaway: If you have worries about who may pursue custody of your child, it’s crucial to record them now, rather than waiting until a crisis makes it too late.

Why the Right Plan Offers More Protection Than You Realize

The Michigan case serves as a strong reminder that legal assumptions don’t always reflect reality. Even when the law appears to favor a certain outcome, courts must still assess what genuinely serves a child’s best interests, and this evaluation can be time-consuming, involve differing opinions, and lead to significant uncertainty.

Without a plan, families encounter:

● Legal disputes among relatives who care but have differing opinions

● Delays of days or even weeks in receiving medical attention or addressing basic needs

● Uncertainty regarding who has the power to make decisions

● A child dealing with an already challenging loss while adults figure out the logistics

With a proper plan established, these risks significantly decrease. Your child’s care aligns with your preferences. Trusted caregivers can respond without delay. And those you wouldn’t want involved are clearly kept out.

In summary: Effective planning not only safeguards your child in the long run. It also removes the confusion, delays, and uncertainties that could negatively impact a child in the immediate aftermath of a crisis.

What You Can Do Right Now

Your child deserves immediate protection in an emergency, not just a delayed response after the court has had time to intervene. We assist you in developing a Life & Legacy Plan that features a Kids Protection Plan aimed at safeguarding your child right away and ensuring your wishes dictate what occurs if you are ever absent. We avoid generic documents. Instead, we invest the time to comprehend your family’s unique circumstances and craft a plan that truly functions when your loved ones require it.

Schedule a complimentary 15-minute consultation to learn more.

This article is a service of Kristen Wong of Seasons Estate Planning, APC, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life & Legacy Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session™.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.