If You Don't Come Home Tonight, Who Raises Your Kids?

By Sean Joyner, estate planning attorney

Every parent has had the thought, usually somewhere between merging onto the highway and glancing at a text from the babysitter: What happens to my kids if we don't make it home tonight?

Most parents think they've addressed it. They recall a brief conversation years ago: "If anything happened to us, you'd take the kids, right?" The chosen guardian agrees, and everyone believes the issue is resolved. But that casual conversation carries no legal authority.

Without properly executed documents, no one—not your closest friend, your brother or even your own mother—has an automatic legal right to take custody of your children in an emergency.

A complete guardianship plan has two critical parts:

1. The emergency (short-term) guardian

This is someone who lives 20 to 30 minutes away, such as a local friend or neighbor. In an accident or other emergency, responders cannot simply hand your children over to an adult who has not been designated. If your chosen guardian lives out of state or isn't immediately available, your children could spend traumatic hours or days in temporary state custody while arrangements are made.

A short-term guardian can step in immediately to care for your children until long-term arrangements are made.

2. The permanent (long-term) guardian

These are the people who will raise your children to adulthood. Beyond shared values, consider continuity. Moving out of state can mean taking your children away from their school, friends and community roots—the sources of stability they may need most during an already traumatic time.

You have the authority to select the adults best suited to maintain that continuity and honor your parenting style, whether that means a relative or a close family friend.

Confidential exclusions

Sometimes protecting your children is less about whom you choose and more about whom you want to exclude. If there is a specific relative who should never raise your children because of past conflicts, differing values or lifestyle concerns, you may be able to execute a confidential exclusion document.

This private legal document can tell the court whom you do not want appointed as guardian and why. It can help ensure that your wishes are considered if a family member seeks custody.

The court gap

Without a signed nomination, the decision falls to a judge at the Fairfax County Juvenile and Domestic Relations District Court. The court will consider factors such as the children's best interests, the circumstances of the proposed guardians and the availability of suitable caregivers.

Your unwritten wishes, however, may never reach the courtroom. For example, you may prefer an out-of-state sister and her partner, while another local relative whom you would not choose seeks custody. Without proper documentation, the court may not know your preferences.

Part of a broader plan

Guardianship is just one piece of a comprehensive estate plan. While it addresses who will care for your children, a complete plan also protects their financial future. Establishing a trust can provide guardians with access to resources for your children while helping avoid unnecessary court involvement.

Creating a guardianship plan can take one afternoon. It can help protect your children in an emergency and ensure they are raised by the people you choose.

Disclaimer: The information provided in this article is for educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Laws vary by state, and readers should consult a qualified estate planning attorney regarding their specific legal needs.

Sean Joyner is an estate planning attorney at Joyner Trust Law (joynertrustlaw.com/, 703-485-8995), helping Northern Virginia families protect what matters most.