Legal Question in Family Law in Oregon

Re: Oversea - Child custody law upon death

QUESTION(s):

In the event that both parents die, who does the law lean towards for child custody?

ANSWER: The law leans toward following the will of the deceased parents and who the deceased parents designated to be the guardians for the children in the event of the parents' deaths. (This is why it is so important to have a will.)

If there is no will, what typically happens is that some family member (grandparents, aunts, uncles, etc.) will step forward to take control of the children and will then apply to the court for appointment as legal guardians. In the event of conflict among the family members who seek custody of the children, the court then has to make the decision (since the parents did not make their preference known through a will).

QUESTION:

Another layer to this is, in the event of the husband's mother is also deceased, who will get full custody? In-law from oversea or brother/sister of husband?

ANSWER:

Most likely, some other family member. Probably one who is alive, and who has a strong pre-existing relationship with the child, all depending on what is in the best interests of the child. Depending on the totality of the case facts and circumstancds, this might be and in-law from oversea or brother/sister of husband. Or it might be the wife's brother/sister. Or a second cousin, twice removed, who has been far more involved in the child's life than the husband's brother or the in-law from overseas. Again, much depends on the particular facts and circumstances of the particular case. (Unlike the question of disposition of property when a person dies without a will, custody of children does not have any hard and firm rules. Each case is decided on its own specific facts.)

QUESTION:

Will writing a will on who will become the guardian help this type of sticky situation if it were to become reality?

ANSWER:

Yes. Most definitely.