We all want to be there for our children but what happens to your child if the unthinkable happens? What if you’re travelling overseas and there’s an event, that means you’re stuck there and can’t get home? What if you have a medical emergency that leaves you hospitalized, in intensive care, unable to communicate? What if you’re in a car accident and you’re killed?
Without an emergency response plan, your child may be taken into protective custody or foster care, making an already traumatic event much worse.
And while the odds of these events happening to you may seem remote, these are real risks. These are situations that all families, divorced or not need to consider and being divorced, can compound the drama.
The good news is that with the courage to consider these possibilities you can put a plan in place that will make the world of difference to your child.
Joining me for this Conversation to share all the ins and outs of a Children’s Emergency Response Plan is estate-planning attorney Martha Hartney. Inspired by her two children, Martha is the creator of CHERP – the solution that walks you through creating your Children’s Emergency Response Plan in just 30 minutes. Listen in to the Conversation below (email subscribers click here) or keep reading for a synopsis.
It’s Not Just Death
When we talk about the unthinkable, death is the obvious situation. There are others however and Hartney refers to these as the six D’s: disability, detention, delay, deportation, disaster and death.
They’re all the situations that might keep us away from our kids unexpectedly. “We need to make sure we have empowered people who are nearby our children to take legal custody of our children in one of these emergencies,” said Hartney.
Having a Children’s Emergency Response Plan helps to ensure that a child doesn’t get lost in the shuffle.
Your Child Could Be Taken Into Protective Custody
As an example, let’s say you’re in a car accident and you’re seriously injured. You’re unconscious and can’t communicate to first responders. They will observe what is in the car and often times there will be plenty of items in the car, such as car seat, kiddie toys, sippy cups, that would alert first responders to the fact that you are a parent.
The first responders will then locate your child and next have to figure out who is the next of kin or legal guardian. Most likely, the police will send a squad car to the home to give notice of the event and to locate any children.
Whoever answers the door will be asked if they are the next of kin or if they know the whereabouts of the legal guardian. At this point, the police are not able to leave a child in the care of someone who is not either one of these roles and the child would be taken into protective custody.
What About Emergency Contacts?
You will likely have been requested by your child’s school to designate emergency contacts but unless you’ve formally designated these people as temporary or permanent legal guardians, the authorities may not permit your child to stay with them. The police may visit your emergency contacts and ask if they have information about next of kin and guardians.
What About My Child’s Other Parent?
Hartney says that both parents have constitutional rights as parents and there is no way to circumvent these rights short of a termination of parental rights. So in a shared custody situation, if something does happen to one parent, then the children will always go to the other parent regardless of a written designation of an alternative legal guardian. It doesn’t mean, for example that the person you designate as legal guardian, steps into your parenting time and is now a co-parent with your ex.
Ideally, parents will work together on designating the person(s) who would become legal guardian in the event that both of them died or became disabled and incapacitated and Hartney says that increasingly, divorcing parents are including these directions in their parenting plan. While that’s better than no plan, those directions do become a court order and that means having to go back to court to make changes to the designation.
If parents can’t agree on a guardianship designation, then they can each designate their own temporary and permanent guardians. What happens then if both parents die while the children are minors depends on state law. Hartney says that in Colorado, for example, the paperwork that would be used is the paperwork from the last parent to have passed away.
A Children’s Emergency Response Plan is especially important if there is restrictive parenting time such as supervised visits or no overnights because a parent is currently in treatment for drug and/or alcohol abuse or domestic violence. In these situations, the Court would evaluate the placement of the children.
Put Your Plan In Writing
It doesn’t matter how good or solid your plan is if it’s all in your head or is a verbal agreement you’ve made with your preferred person. The people you’ve designated as temporary and permanent guardians need signed and notarized paperwork that they can present to the authorities.
More than that, the plan is worthless if no one knows about it. Hartney’s CHERP program has stickers for car and house windows, wallet ID cards and also a lock screen option for your phone so emergency personnel are alerted the instance they pick up your phone and can access the information. She recommends making sure that each person you’ve designated also has a hard copy of the documents and that you keep another copy in the glove box of your vehicle.
Do Discuss This With Your Child
Many children do ask their parents about who will take care of them, if something happens to mom and dad. Such questions can be triggered by news events, the death of another family member, a friend’s experience and by divorce.
First response is always to reassure the child in an age-appropriate way. It is extremely rare for both parents to be killed before a child becomes an adult and since divorce usually means the parents are no longer travelling together, then the risk of losing both parents following a divorce is reduced even further. Then, reassure your child that no matter what, they will be taken care of.
For many parents that means telling the child that their other parent will take care of them. If the child’s relationship with their other parent is challenged, or if your child has anxiety, then you may wish to seek more professional help on this issue.
Hartney says that the Court is required to confer with a child aged 12 of more about placement. So at this age, it would be appropriate for you to have a conversation with your child about what they would prefer.
Having designated a legal guardian for your child, Hartney adds that it is also your job to provide that guardian with the financial resources for them to do the job you’re asking them to do. That means making sure you have an estate plan and have updated your beneficiary designations accordingly.