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The addition of a child to the family is cause for celebration. As a parent, every part of your life changes – your world grows bigger, and your priorities shift. But along with the joy comes a profound sense of responsibility. You are committed to protecting this tiny, vulnerable person and their future, including making sure they would be cared for by the right people if something unexpected happened.

One question many parents have is whether their will can dictate who will take custody of their children. A will plays an essential role in expressing your wishes; however, it doesn’t control every aspect of child custody under California law. Understanding what a will can and cannot do can help you make more informed decisions for protecting your children’s future.

What a Will Can Do

A will allows you to name a guardian to take care of your minor children in the event of your death. For new parents, this is one of the most critical aspects of creating a will. There are two capacities in which a guardian may serve:

1. Guardian of the person: The responsibility for the child’s daily care, well-being, and upbringing
2. Guardian of the estate: Managing any inheritance left for the child.

You can name the same person for both roles or appoint different individuals for each one based on their strengths.

What a Will Cannot Do

Many parents are surprised to learn that naming a guardian in their will doesn’t automatically guarantee custody. The judge will give substantial weight to the parents’ wishes, but they must also evaluate what is in the child’s best interests. Therefore, they may reject the parents’ nomination if:

• The nominee has a criminal history or substance abuse problems
• There are credible allegations of past abuse or neglect
• The nominee is unable or unwilling to take on the responsibility of guardianship
• Another close relative petitions the court for guardianship, and they appear better suited for the role.

What if Only One Parent Dies?

If one parent dies, the child will stay with the surviving parent unless the judge finds them unfit. Even if you nominate someone else as guardian, the courts will not allow a will to override the surviving parent’s rights.

If both parents die, or the surviving parent can’t care for the child, the court will look to the will for guidance.

What if there is no Will?

About two-thirds of American adults don’t have a will. For parents with minor children, this creates a dilemma for California courts as they must determine guardianship with no guidance. This can result in family disputes as multiple relatives petition for custody. The worst part is the uncertainty it creates for the child who has lost their parents and is trying to process their emotions.

Beyond the Will

You want your wishes to carry as much weight as possible with the courts. In addition to naming a guardian in your will, consider writing a letter of explanation describing why you chose a particular guardian. You should also name a backup guardian in the event your first choice can’t fulfill the role. Creating a trust to manage your children’s inheritance helps ensure their financial security.

Our attorneys at Lonich Patton Ehrlich Policastri can help you draft a will, create a guardian plan, and set up a trust. We understand the importance of protecting your children’s future if something were to happen to you. 

Contact us for a free consultation by calling 408-553-0801. By working with us, you will have peace of mind and the assurance that your wishes are legally sound.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

Usually, when people think about dissolving a marriage, divorce is the first thing that comes to mind. In some cases, though, an annulment might be more appropriate. Unlike divorce, which legally ends a marriage, an annulment means the marriage was never valid in the first place. How long the annulment process takes will vary widely depending on whether your spouse agrees or objects as well as how complicated the case is, however, the following outline provides some general guidance.

Types of Annulment

When it comes to civil annulments (as opposed to religious annulments, which are handled through the Catholic church), you will have either an uncontested annulment or a contested annulment.

Uncontested Annulments

In an uncontested annulment, both parties agree to the annulment, and there are no disputed issues related to grounds for filing, assets, or child custody. Usually, a judge will simply review the request, and you might also be required to attend a hearing. An uncontested civil annulment can take anywhere from a few weeks to several months, depending on the case workload of the family court involved.

Contested Annulments

Contested annulments, on the other hand, generally take longer (i.e., 6 months to over a year), depending on the reason your spouse contests the annulment. For instance, if you allege fraud or coercion as the grounds for the annulment, you will need to provide evidence to the court. 

The Annulment Process

First, you need to make sure that your marriage qualifies for an annulment. Although each state has specific legal grounds for annulments, common grounds include:

• Fraud or misrepresentation
• Coercion or force
• Underage spouse
• Incest
• Bigamy
• Mental incapacity
• Spouse concealed information such as impotence, criminal history, or addiction

File a Petition and Notify Your Spouse

If you qualify for an annulment in your state, your next step would be to file a petition for annulment in the family court in your jurisdiction. Most states require you to notify your spouse that you have begun the annulment process. They generally have 30 days to respond by either agreeing or contesting.

Gather Documents and Evidence

Before you attend a hearing with a judge, you will need to gather relevant documents like your marriage certificate and identification. You will also likely need to provide evidence to support your reason for requesting the annulment such as texts, photographs, emails, expert witness statements, medical documentation, etc.

Attend Court Hearings

For uncontested annulments, there will likely only be one, short hearing, or the judge may sign the petition without a hearing. For contested annulments, you might be required to attend several hearings. Both sides will present evidence, and the judge will review the case and decide whether the grounds have been proven or not. 

If the judge approves, you will receive a Decree of Annulment, which legally voids your marriage as if it never existed.

Get Help With the Annulment Process

Even for uncontested annulments, it’s a good idea to work with a family law attorney who is familiar with annulments in your state to make sure the process goes smoothly. The family law group at Lonich Patton Ehrlich Policastri has decades of experience helping couples through the annulment process. Schedule a free consultation today to discuss your case with us to find out how we can best represent you and your interests.

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.