I am often asked, "where will my child go if something happens to me?" This comes up primarily in Paternity actions but sometimes in divorce proceedings. Particularly if there is a joint custody plan. My standard answer has always been custody then automatically vest with the other parent, which is true under Oklahoma Law; but what happens if the other parent is not around or is unfit?
Recently a personal matter has brought this to the forefront of my life and I have had to reevaluate my standard off the cuff response and consider are there other factors to consider? Is it really automatic custody to the other parent? What about the highly valued "best interest of the minor child" rule?
Starting with the basic issue the answer remains the same. Whether your custody case awards you sole legal custody or joint legal custody with the other parent, once you become incapacitated and/or deceased legal custody vests with the remaining parent. This should not mean you take no steps to nominate guardians or other basic estate planning steps.
We all think we will live forever; however, once children are involved it is incumbent that we take steps to plan for their care. I myself am guilty of not maintaining up to date wills or advance directives, but it is vital to do so. In a situation where the other parent is absent from the child's life and/or has other issues which make them unfit to take custody, you should designate your nominee for guardian.
Oklahoma Statutes Title 43 O.S. 112.5 governs issues relating to guardianship of minor children for a deceased or incapacitated parent. It is not a mandatory "order of preference" but is discretionary for the court to consider any on the list who are fit to be guardians. Therefore, if you wish someone other than the other parent or the typical default grandparents then you must nominate that person. You can nominate them in your will or durable power of attorney, or some other writing so you may have your wishes before the court.
Accidents happen everyday, you never know when or why things occur so take the time now and plan for that worse case scenario.