When the sole custodial parent—usually the biological mother—of a young child dies, who gets custody of the child left behind? The answer to that question can throw the entire surviving family into conflict and cause everyone to end up in court, wrangling over custody.
It might seem obvious to an outsider who should get custody, especially if there is a surviving biological parent or even a step-parent that has been the child’s only other parental figure since birth (which is common in same-sex relationships). Unfortunately, sometimes those other parents lack necessary formal legal ties to their children, which means that gaining custody of their own child may not be a given.
This can particularly be a problem when the maternal grandparents or the mother’s siblings want to gain custody of the child. Sometimes the mother’s relatives are acting out of grief and want to make sure that they won’t lose their only living connection to their deceased daughter or sister. Other times, they may feel like the other parent in the picture simply doesn’t have a “right” to the child for one or more reasons—and the law may actually be on their side.
For example, if you are the biological father of the child whose mother died, did you ever establish paternity? If not, you may have to go through the process of proving your biological relationship to the child just to start the process of gaining custody. If you were fairly uninvolved with your child either at the mother’s request or due to distance (if you lived in a different area), your child’s maternal relatives may argue that they have a significant emotional bond already with the child that should trump your paternal rights.
If you were in a same-sex relationship with the biological mother and been the child’s other parent since birth, you may have those deep emotional bonds established—but unless you took legal steps to adopt the child, there’s no guarantee that the court will give you custody over a biological relative that decides to object.
It’s also important to remember that a child, unlike a possession, can’t be willed to someone’s care. While the mother may have put together legal documents giving guardianship of the child to you if she died, those are subject to challenge in court.
Please visit our page to learn more about how our firm can help with custody issues.
Source: singleparents.about.com, “Child Custody After Death of a Parent,” Debrina Washington, accessed Dec. 12, 2016