Upon the death of a custodial parent, the courts must work quickly to appoint a new caretaker and guardian for the child. Typically, the surviving biological parent gets priority. However, if the biological parent is deemed unfit or if other special circumstances exist, custody may be entrusted to other parties.
Potential alternative guardians include stepparents, grandparents, uncles, aunts, other relatives, friends of the family, or the State. Read on for a clearer understanding of how courts determine guardianship following a custodial parent's passing.
Biological Parents and Custody
The general rule is that the surviving biological parent gets custody if the custodial parent passes away. Parents can certainly name a desired guardian for their children in their will. However, the court will typically still give preference to the surviving biological parent over other guardians named in a will.
For cases involving surviving male biological parents who seek custodianship, courts may require proof of paternity through an Acknowledgment of Paternity (AOP) form. Supporting evidence for paternity can include a birth certificate with the father's signature or verified DNA paternity test results.
However, the surviving biological parent is not always awarded custody after a custodial parent's death. There are various exceptions to the rule. One exception arises when the surviving parent is deemed unfit to serve as custodian by judicial standards.
For example, if the surviving biological parent is diagnosed with an incapacitating physical or mental illness, or if they have an extensive criminal background or history of domestic abuse, their parental fitness can be contested in court. In these cases, a judge will decide custody arrangements and assign a temporary guardian until a permanent custodian is established.
Stepparents and Custody
Another exception to the "biological parent rule" exists when a child has been legally adopted by a stepparent. When a custodial parent remarries, and their new spouse adopts the child, this adoption generally grants the stepparent the right to assume custody in the event that their spouse (the custodial parent) passes away.
In most states, consent from the non-custodial biological parent is required for a stepparent to adopt their child. Through the consent process, the biological parent is effectively given notice that they are transferring guardianship rights to the adoptive stepparent.
How Courts Appoint a Guardian
In instances where there is no surviving biological or adoptive parent, or if the surviving parent is deemed unfit, the court must appoint an alternative guardian to care for any minor children.
Here, the court will consider any preferred guardians listed in the deceased parent's will. However, the ultimate decision regarding guardianship will be based on "the best interests of the child" standard.
Under the "best interests of the child" standard, the court evaluates multiple factors to determine which guardian would most effectively serve the child's needs. These considerations include:
- Candidate's financial ability to meet the child's basic needs (shelter, clothing, food, medical)
- Candidate's lifestyle, employment, and residential circumstances
- Candidate's physical and mental health status
- Candidate's history (criminal background, substance abuse, domestic violence)
- The child's social, religious, and extracurricular activities
- The child's educational or medical requirements
- The child's age
For cases involving older children, the court may consider the child's preferences when appointing a legal guardian. Typically, a child must be at least 10-12 years of age to have their opinion considered. Each state has specific laws and guidelines that define how old a child must be so that their opinions can influence a decision on custody.
Grandparents and Custody
While many grandparents work to maintain a close relationship with their grandchildren, family courts generally consider them in the same light as any other potential guardian following the death of a custodial parent. Grandparents can petition for custody, but the court will still use the best interests of the child standard when determining whether to assign guardianship.
Navigating custody disputes is challenging, particularly after the death of a child's parent. If you are concerned about the care of a child after a parent's death, an experienced child custody attorney can help provide legal support throughout the process and assist in ensuring that the child's needs are appropriately met.