California gives parents the statutory right to name a guardian for their children. If no guardian is named in your will or other estate planning documents, and tragedy strikes, it will be up to the Court to decide who will raise your children. The Court may appoint someone that you would not have chosen yourself.
This issue is especially important when dealing with international families, i.e., parents who are non-citizens of the United States, or who hold dual citizenship’s, or whose closest family members do not live in the United States. In some states, the Court will not name as guardian a person who is not a citizen of the United States.
Courts are reluctant to lose jurisdiction over children in their courtrooms because they want to ensure their safety and care. This may be a problem if you wish your children to return to their/your country of origin. If your child is a citizen of the United States, but not a citizen of your country of origin, a court may be reluctant to grant guardianship to someone who will remove the child from the United States.
Even if your child is a U.S. citizen, you should apply on behalf of your child for dual citizenship in your home country. This will indicate your wish that your child have a connection to your home country. If you wish that your child live in the U.S., but you name a non-citizen guardian, it is highly unlikely that the non-citizen guardian will be permitted to remain in the United States on this basis alone. Parents should speak with a trust attorney about creating a comprehensive estate plan, including guardianship issues. The attorney can explain your rights in CA, including that for parents to name a legal resident of the United States, or a person who would could emigrate or other reasons other than the guardianship of your children.
Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.
Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.