While the children are minors, both parents have parental rights
When the parents divorce, the right of parental rights is still held by both, but the exercise is held by the father or mother who holds the tenure (eg, this is the one who can decide to change it from school).
But there are special situations where it is necessary to provide for who you would like to have the guardianship of your child, in case your parents are not. Some examples:
- If one of the parents has already passed away.
- If one of the parents lives, but has totally abandoned his son, lives abroad or it is not known where he lives.
- If the father or mother who has his son in charge usually makes frequent trips by plane for work reasons.
- If the father or mother have any disease.
- If the father or mother has had his son at an age that would presume that they could naturally die before the child is of age (21 years, not 18, as mistakenly believed).
- If there are family disputes between the maternal and paternal families that would suggest that they would end up litigating for the guardianship of the grandson or nephew.
- If there are no close relatives who could claim guardianship.
- If there are still other relatives, you consider that another person of your knowledge would be more apt to perform the guardianship, taking better care of the person and the assets of your child until he is of legal age.
- If you plan to settle abroad without your child.
- If your child has special needs they should be taken care of only by people prepared for it.
- If you are a single mother and your child is registered only with your last name.
- If you are about to face a surgical intervention of some importance.
Keep in mind that - fortunately - these designations of guardianship do not come to be used in practice, because the most common is that children reach the age of majority with both or one of their parents alive.
But as surely, when thinking about the eventuality of his death, what worries him most is his son, it is advisable to legally leave this dative guardianship. There are several ways to do it. To do this consult a lawyer specializing in Family Law.
This prevention allows you to respect not only the life project you want for your child, but also keep in mind "in advance", with whom you would like to live in case your parents were not. It is not necessary to ask explicitly. No one knows your child more than you.
And if you do not decide and it is necessary in the future to appoint a guardian, an unknown Judge will do it based on the proposals made by the different possible aspiring guardians (your mother-in-law, sister-in-law, mother, sister, cousin , the godmother of his son).
So why not leave your will in advance to avoid these conflicts?
The appointment of guardian can also be done when both parents live. In case of death of one, obviously the child will be in charge of the other, but in case of death of both (jointly or successively), it will be necessary to anticipate who will be the guardian.
Not to be scared to think about this: a person from my family had a son at 43, with a husband of approximately 50 years. When the son was 6 years old, the father died quickly of lung cancer and the mother (already 49 years old) the first thing he did was to appoint a guardian for his children "just in case something happens to her too." Fortunately, that boy is 32 years old today and this lady 75 and enjoys his 3-year-old granddaughter. Dative guardianship was never used, but it gave him peace of mind to have it done.
Dr. Mirta Susana NUÑEZ, lawyer, mediator, social psychologist, psychodramatist, personal planning consultant, member of the Argentine Council of Succession Planning (CAPS), director of the Newsletter "Family, Heritage and Planning"