Who will look after your child if something happens to you? How parents can take timely precautions with a custody order.
Berlin. The parents die, the minor child is left behind: Unfortunately, cases like this happen from time to time. But who will now take care of the child or children and get custody? Parents should specify this as early as possible in a so-called custody order, as Berlin family law specialist Eva Becker says. This means that mothers and fathers determine that a person of their choice will have guardianship and thus custody of the minor offspring after their death.
A child's godparents do not automatically become guardians
There is a widespread idea that a child's godparents automatically become the child's guardian in the event of the parents' death. “But that’s not true,” says Becker, who is chairwoman of the family law committee in the German Bar Association. Church traditions such as sponsorships would have no impact on civil law.
Of course, godparents could definitely become the guardian of a child. “However, parents or the single parent must specify this in an order,” says Becker. Custody does not automatically pass to the partner of a single mother or father. The deceased must have ordered this too.
Draw up a custody order as a will or inheritance contract
In a so-called custody order, mothers and fathers can also regulate who should not take over guardianship under any circumstances. “Ideally, a custody order is drawn up as a notarized will or inheritance contract,” says Becker. For this, parents should consult a lawyer or a notary.
In principle, it is sufficient to write down on a piece of paper who will have custody of the child or children in the event of death - and to put a date and signature on it. “However, such a document can easily be lost or torn,” says Becker. Therefore, from their point of view, it makes more sense to draw up the custody order as a notarial will or inheritance contract.
What exactly is a custody order?
In a custody order, parents name someone as guardian for their child in the event of their death. “A guardian takes on parental responsibility and makes the essential decisions for the child, for example in matters of care, upbringing and financial matters,” says Sophie Godt-Nordhues, notary and press spokeswoman for the Federal Chamber of Notaries.
If only one parent dies initially, custody automatically passes to the other parent. Only if both parents are absent does the appointment of a guardian even come into play. “The ruling of the last parent who died is then decisive,” says Godt-Nordhues.
According to her, the determination made in a custody order as to who should take over guardianship is fundamentally decisive for the family court. The court can only deviate from this in exceptional cases. This is the case if there are concrete indications that the named person is unsuitable to take on guardianship or that the child's well-being would be at risk.
What you need to consider when drawing up a custody order
“It is important to clearly and unambiguously name the guardian,” says Godt-Nordhues. Before drawing up the custody order, mothers and fathers should ask the person they consider to be suitable whether they could imagine becoming the child's guardian in the event of an emergency.
Ideally, parents also name a replacement person if the person initially designated cannot or perhaps does not want to take on the position.
“It also makes sense to briefly justify the choice of guardian,” says Godt-Nordhues. The family court is fundamentally bound by the parents' wishes. However, this can deviate if the naming is not in the best interests of the child. A justification, such as personal ties, makes it easier for the court to examine the matter.
How the custody order is quickly available in the event of death
A notarial will is always kept officially at the probate court, and an inheritance contract is usually kept. All notarial dispositions upon death are also registered in the Central Register of Wills. “This ensures that the order - including the custody order - can be reliably found in the event of death,” says Godt-Nordhues.
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In individual cases, however, it may take some time until a last will and testament is opened. In order to avoid delays, it is therefore advisable to also ensure that the custody order is available practically quickly. “It makes sense, for example, to keep a copy - or the original in the case of a handwritten order - in a central folder with important documents,” says Godt-Nordhues.
The person designated as guardian should also know where to find the order. In this way, the process for appointing a guardian can be initiated as quickly as possible.
