If A Child Is Injured In An Accident With Divorced Parents Who Files The Claim?

In cases of child injury with divorced parents, who should file the claim? Get legal insights for complex family situations.
Published:  November 14, 2023

Understanding In A Car Crash

Every parent's worst nightmare is seeing their child injured in an accident. It's a heart-wrenching experience that can turn their world upside down. But when the parents are divorced, an additional layer of complexity is added to an already difficult situation.

In such distressing moments, amidst the medical decisions and emotional turmoil, a critical question emerges: "Who should file the claim for the child's injuries?"

In this blog post, we will delve into this deeply emotional and legally intricate issue. We will navigate through the complexities of determining the responsible party for filing a personal injury claim when the parents are divorced.

This isn't just a legal matter; it's about protecting the well-being and future of a child who is going through a challenging time.

Join us as we unravel the layers of this issue, providing insights into how the legal system addresses cases, the rights of both parents and most importantly what is in the best interest of the child.

Understanding the process and the considerations involved is essential for any parent facing this daunting situation. So, let's embark on this journey to gain clarity on a subject that touches the lives of families in their most vulnerable moments.

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Identifying the Custodial Parent for a Child's Personal Injury Settlement

When a child sustains injuries in an accident, determining which parent manages the resulting personal injury settlement can be a complex process. Here's a more detailed look at how this decision is typically made:

Custody and Management: The parent who has been granted custody of the child typically assumes the responsibility of managing the child's settlement money. This decision often rests on the court's determination of what is in the best interest of the child.

Joint Custody Considerations: In cases of joint custody, the parent with primary custody is usually designated as the manager of the funds. However, it's essential to note that courts retain the authority to appoint the non-custodial parent to manage the money when it serves the child's best interests.

Personal Injury Settlements for Children

Let's delve deeper into how personal injury settlements for children are typically structured and managed:

Lump Sum Payment: The initial installment of the settlement, often referred to as a lump sum, is intended to cover immediate financial needs. This includes addressing legal expenses and medical bills incurred as a result of the accident.

Trust Fund for the Future: The second installment of the settlement is typically placed in a trust fund that remains inaccessible to both the child and the parents until the child reaches the age of 18. This trust fund is specifically designed to cover future medical expenses and any pain and suffering that may affect the child throughout their life.

Fiduciary Duty of the Parent

The fiduciary duty of the parent in managing a child's personal injury settlement is a critical aspect of the process:

Initial Expense Management: When a child receives a personal injury settlement, the parent or parents have a fiduciary duty to protect their child's financial well-being. This includes managing the initial expenses resulting from the injury.

Preserving the Award Money: Parents must also ensure the preservation of the award money for future expenses related to the injury. This may involve prudent investment and financial planning. Courts may permit access to the funds to cover these future expenses, but it's essential to remember that the award money legally belongs to the child, and the courts have the authority to ensure it is not mismanaged.

Court Approval of Settlements

Let's explore the process of court approval of settlements in more detail:

Guardian Ad Litem: When a personal injury settlement is proposed on behalf of a minor the court appoints a guardian ad litem, an independent attorney, to represent the child's best interests and ensure that the proposed settlement is fair.

Pro Ami Hearing: A "Pro Ami" hearing is held where the minor, parents, and guardian ad litem testify before a judge. The judge carefully reviews the documents and asks questions to determine if the proposed settlement is justifiable and in the child's best interest. Once approved, the claim is settled.

Personal Injury Payouts for Minors

Let's provide a more comprehensive understanding of how personal injury payouts for minors are typically structured:

Lump Sum Payment: This initial settlement, often referred to as a lump sum, covers immediate expenses such as medical bills and legal fees.

Trust Fund for the Future: The second installment, placed in a trust fund, covers future medical costs and intangible damages like emotional distress. Parents cannot access this trust fund without court permission. Once the child reaches the age of majority, they can access the funds as their personal property.

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Can Someone Other Than the Custodial Parent File an Injury Claim on the Minor’s Behalf?

Here, we'll explore the circumstances under which someone other than the custodial parent can file an injury claim on the minor's behalf:

"Next Friend" Representation: Some states permit a person referred to as a "next friend" to pursue the claim when custodial parents are unable or unwilling to do so and the child lacks a legal guardian.

Guardian Ad Litem Review: In such cases, the court appoints a guardian ad litem to ensure the child's best interests are upheld throughout the legal proceedings.

Fiduciary Duty

The fiduciary duty of parents in managing a child's personal injury award remains a critical aspect, irrespective of their marital status:

Initial Cost Management: Parents are responsible for managing the initial costs resulting from the injury.

Safeguarding the Settlement: They must also safeguard the settlement money for future expenses related to the injury, including future medical costs. Courts may permit access to the award money to cover these expenses, always with the child's best interests in mind.

The Mike Hostilo Law Firm Is On Your Side

In cases where a child is injured in an accident with divorced parents, navigating the legal process can be complex.

Determining who files the claim and managing the settlement requires careful consideration and adherence to legal procedures.

It's important to remember that the settlement belongs to the child and all actions taken must prioritize their best interests.

If you're faced with such a situation and need legal assistance, consider contacting The Mike Hostilo Law Firm.

We handle personal injury cases and can guide you through the process to ensure the best outcome for your child.

Don't hesitate to reach out; we're here to help with all types of cases.

The Mike Hostilo Law Firm

33 Park of Commerce Blvd
Savannah, GA
(844) 203-9338

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© 2023 Michael G. Hostilo, LLC
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Locations - South CarolinaBeaufort
Law Offices - AlabamaPhenix City
*"Contingent attorneys” "No fee unless you win or collect" and "You only pay us if we win your personal injury claim" fees refer only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client.

Any result the lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients.

Mike Hostilo is not licensed to practice law in South Carolina.
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