[WSBAPT] Canada and Guardianship of Minor

[Andrekita Silva]

  Law Office of
F.ANDREKITA SILVA
________________________________________________________________________
 
.                                                        
                               November 6, 2018          
 
Jenny, 

I don’t know if anyone answered your question.
 
Fathers rights vary from country to country. However, in most Western  
countries, the biological parents have the first natural right of  
custody.  Washington has a law stating that the surviving parent has  
the right of custody. ( even if we didn’t, the 1st amendment to the  
Constitution grants this right). This, of course, is balanced against  
laws that protect children. In certain circumstances, the state (CPS)  
can  intervene and petition to remove a child from a biological  
parent, or a third party can petition for custody, etc.
 
So, if one parent receives custody through a family law court order,  
the other parent doesn’t lose their legal rights. If one parent dies,  
it doesn’t matter if the primary (custodial) parent nominated someone  
else – a third party – in their Will to be the child’s guardian. The  
surviving biological parent becomes the custodial parent by operation  
of law.  
 
The person nominated as guardian would have to bring an action to be  
named as the child’s custodian and they would need to establish the  
basis for their claim just as they would have to do if both parents  
were still living. 
 
I am aware that this is also the case in Mexico and in England.  I’ve  
never had a Canadian case but I suspect their law is not that  
different than ours. If someone nominated someone to be guardian of  
the child in their Will, and if an action were brought for any reason  
– other party’s whereabouts unknown, other parent deceased, etc. ,  
then the deceased biological parent’s wishes will be considered.
 
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting Jenny Ling <jenny at jennylinglaw.com>:

> Hi All,
>
>    Anyone deal with Canadian family law as part of an estate plan  
> before? I have a C who was divorced from ex-spouse in Canada, and  
> her divorce order granted her sole custody of child.  If she were to  
> name someone other than her ex-spouse as guardian, would her child  
> be able to go to the named person since Mom has sole custody per  
> Canadian law, or must the child regardless go with biological dad?
>
>    Thanks,
>
>    Jenny Ling, Attorney at Law
> The Law Offices of Jenny Ling, PLLC
> 14900 Interurban Ave. S., Ste. 271
> Seattle, WA 98168
> 206-859-5098
> jenny at jennylinglaw.com
>
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