Are you a non U.S. citizen with children living in California, temporarily or permanently?
What should non U.S. citizens (resident and nonresident aliens) do to protect their kids while in California?
If you have minor children, don’t leave them unprotected.
California has more immigrants than any other states — more than 10 million people, which is close to one in four of the foreign-born population in the U.S. as a whole. Foreign-born resident represent more than 30% of the population in eight of California’s largest counties: Santa Clara, San Mateo, Los Angeles, San Francisco, Alameda, Imperial, Orange, and Monterey. Half of Californian children have at least one immigrant parent, compared to 26% nationwide. Who takes care of the children if something happens to their parents?
With today’s scattered families, it is common for parents to want a family member who lives in a different state than California or even another country to be the guardian. If a minor child is left without a living parent, the probate court judge appoints a guardian. Appointment of a guardian in California requires notice to family members, investigation into appropriate placement, and in the end it's up to the judge to make an appointment that is in the best interest of the child. These guardians, like parents, have a lot of influence over a child's many day-to-day experiences and impact the big decisions your children make as adults. You are in the best position to make the tough decisions of nominating a guardian for your minor children because no judge will ever know your family like you do. I always advise parents to nominate a guardian in their wills because judges take these recommendations seriously. Also, I am weary of deferring responsibility to the probate court to locate and give notice to your family members abroad. It is best to tell the court exactly who you nominate and provide their contact information.
If your desired guardian is outside of California and especially outside of the U.S., it makes sense to nominate a temporary, local, guardian to take care of your children until family members can arrive from abroad. This is because it may take time for an international guardian to receive notice of the death and travel to California. An international guardian seeking to relocate a child to his or her country would need to come to California, petition for appointment as a temporary guardian, and post a bond as insurance that they will faithfully perform their duties as a guardian. In that petition, the guardian would have to ask the court to permit him or her to travel back to the home country and get appointment as permanent guardian there. Once appointed permanently, the guardian would then notify the California court of the children’s new address, and ask the court to terminate the temporary guardianship in the U.S.
Lastly, I also tell parents to make sure that their children have passports, since they will need them to travel abroad.
As a mother and a child of immigrant parents, I am familiar with the concerns of non U.S. citizens with regards to estate planning. Please contact me for more information on this and more reasons to create a living trust for your family.