• Kyle Persaud

If non-citizens die, and their children are US citizens

Updated: Dec 7, 2020

Haga clic aquí para leer en español.

First, if your children are citizens, they will remain citizens even after you die. They cannot be forced to leave the country.

A more important consideration, though, is: who will care for your children if you die or become disabled?

It is advisable, for you, to nominate a guardian for your children. Then, when you die or become disabled, the person you nominate can ask a judge to be appointed guardian, and the judge may appoint that person as guardian. A guardian has the same legal rights over your child, as a parent does. For more information about the powers and duties that a guardian has, click here. For more information about how to nominate a legal guardian for your children, click here.

If you do not nominate a guardian for your child, then, if you die or become disabled, someone else can ask the court to be appointed guardian. Your children may then be in the care of someone who you don’t want to be their guardian.

The guardian must be nominated by a written document. This document can be a will, or other document. Because a document nominating a guardian can be complex, you should ask a lawyer to prepare a document nominating a guardian.

In Oklahoma, the following persons may nominate a guardian of a minor (under 18) child:

· If the parents are married, either parent may nominate a guardian.

· If the parents are not married, then, the mother may nominate a guardian. The father may nominate a guardian, if

  • the father has acknowledged paternity on a form prepared by the Oklahoma Department of Human Services (DHS) or on a form in compliance with the laws of another state, or

  • A court has ruled that the father is, in fact, the father.

The following persons may nominate a guardian for an incapacitated adult:

· If the incapacitated adult is not married, either parent may nominate a guardian

· If the incapacitated adult is married, the spouse can nominate a guardian

· If an adult child of the incapacitated adult has already been appointed guardian, then the adult child may nominate a successor guardian

For more information on guardianships for incapacitated adults, click here and here.

Also, under Oklahoma law, to be a guardian, a person must be either a U.S. citizen, a lawful permanent resident, or be legally present in the U.S. A person who is not legally present in the U.S. may be appointed guardian only if a court determines that there are no other qualified individuals available to act as guardian, and that it is in the best interests of the minor or incapacitated person for the person to serve. It’s a good idea not to nominate anyone who would likely leave the country or be deported (so your children won’t be left alone in the U.S. without a guardian.) To be a guardian, a person must have been a resident of Oklahoma for at least one year, unless the guardian is a relative. If the guardian is a relative, the guardian does not need to have lived in Oklahoma for a year, and does not need to be a state resident at all.

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NOTE: The information provided on this website is not intended to be, and does not constitute, the giving of legal advice. The information provided here is not intended to be, and should not be used as, a substitute for individual reliance on privately retained legal counsel. Information provided on this site may not constitute the most current or complete information with respect to legal topics or developments. Mr. Persaud expressly disclaims all liability based on any information contained on this site.”

© 2021, by Kyle Persaud.