Guardianship Planning for Global Families:
Choosing a Guardian for Your Child in the International Context
When you came to the United States, it is likely that the last thing on your mind was who would someday take care of your kids if something happened to you. When you arrived, you might not even have had kids or been married. If you’ve ultimately decided to lay down roots and raise your children in the U.S., there are some important things you should know in order to protect your children if something were to happen to you.
If neither you nor your children’s other parent were able to take care of your children (because of death or incapacity), what would happen to them? While you might think of this as an issue for family members, it is ultimately a court that would decide who would have custody of your children. And where international issues arise, that decision can be fraught with complication and uncertainty.
What Country’s Laws Would Apply to the Appointment of a Guardian?
The first question that would have to be decided is which country’s law would apply to your estate. If you are a U.S. citizen or greencard holder, a court applies the law of the U.S. state in which you resided at the time of your death. If you have a will that designates a guardian for your children, the court will look to that document in appointing a guardian. If you die without a will, the court makes an independent judgment about who would be the best person to take care of your kids.
If, on the other hand, you are in the U.S. only temporarily and expect to return to your home country, then the issue of who will take care of your kids would be decided by a court in your home country. If this is the case, make sure that you have appointed a “stand-by guardian” if your state allows it. A standby guardianship document designates someone to take care of your children temporarily until a permanent guardian is appointed. Even your estate is ultimately governed by the laws of another country, it may be necessary for a U.S. court to appoint a temporary guardian until a court in your home country can take action. A standby-guardianship designation also allows a temporary guardian to be appointed if you become incapacitated while in the U.S.
Can a Family Member Who Resides Outside the U.S. Be Appointed as Your Children’s Guardian?
If you are a permanent U.S. resident, but most of your family lives abroad in your home country, your natural choice might be for your children to move there and be taken care of by your parents or by a sibling. However much this makes sense to you, don’t simply assume that a court will respect your choice.
A U.S. court may be reluctant to appoint a non-U.S. citizen as a guardian if it means allowing the children to be taken outside of the U.S. to live. The court will ultimately look to what is in the best interests of the child.
If a non-U.S. resident is your first choice for guardian, you should provide reasons for this decision in your will or other accompanying document. In the event a guardian were necessary, a lawyer would have to argue to the court why your choice of guardian should be respected and is in the best interests of the child. Your reasons may include strong ties between the children and the chosen guardian, a lack of other family members living in the U.S., and a desire for your children to grow up with certain cultural or religious traditions and values. Some other considerations a court might weigh are whether the children are citizens of the country to which they would be moving, whether they speak the language, whether there is political instability in the country, and whether the country’s laws sufficiently protect human rights.
What Happens If No Guardian Is Appointed?
If you have not designated a guardian for your children and no one comes forward to request guardianship, your children will be placed in state custody and enter the foster care system. This can also happen if a U.S. court refuses to appoint a guardian from another country who is designated in your will.
In order to prevent your children from ever ending up in state custody, it is critical to (1) execute a will that designates a guardian for your child and (2) name a back-up guardian living in the U.S. who can take care of your kids if a court refuses to appoint a foreign guardian. Even if the court ultimately allows for the appointment of the non-U.S. guardian, this process can take many months, so it is important to have a U.S.-based guardian to care for your kids while the legal process plays out.
Steps You Can Take to Protect Your Children
If you are a foreign national residing in the U.S. there are steps you can take to protect your children, so that they never end up in state custody.
- Consult with an estate planning lawyer who has experience with international issues and ask them which country’s laws would apply to your estate.
If your estate would not be governed by U.S. laws, then you should discuss your situation with a lawyer in the country whose laws would govern. You may also wish to implement U.S. documents for temporary guardianship and incapacity while you are living in the U.S. A U.S. lawyer can help you put these documents in place.
- If your estate would be governed by U.S. law, work with your attorney to plan for the appointment of a guardian for your children, should it be necessary. If possible, choose a lawyer who specializes in estate planning and who has had experience with international issues.
- Decide on the person you would choose to care for your kids if you and your child’s other parent suddenly died in a car accident.
- Come up with an alternate person to serve in the event that your first choice of guardian is not willing or able to care for your kids.
- If your first choice is not a U.S. resident, then your alternate choice should be. You may wish to have a second alternate.
- If you have chosen a non-U.S. resident to serve as your children’s guardian, the attorney should document your reasons for choosing a him or her, your understanding that the child would not be raised in the U.S., and why your choice of guardian would be in the best interests of your child.
The involvement of international issues makes it even more important to have a plan in place to avoid adverse consequences to your family. While international issues can make legal planning more complex, an estate planning lawyer who has experience with these issues can help you put a solid plan in place to ensure your family is protected.