In the State of Alabama, similar to other states, issues about child custody after the death of a custodial parent may be difficult to resolve. Because all custody cases are unique, it may be hard for a court to determine who should be awarded custody after a child’s custodial parent dies.
There are many different people who may want to be a child’s guardian after their parent passes, which may include, grandparents, the child’s biological father, and other relatives. If a child’s mother was their custodial parent, under child custody laws for unmarried parents, the child’s father may be able to get custody of their child.
When this happens, the father of the child will need to legally establish their paternity. This means that the father will need to petition a court to recognize them as the biological father of the child.
If the guardian of a child does not want to give the father the right to visitation, a court can override those wishes to allow the child to have a relationship with their father. For more information on custody laws in Alabama, it is important to consult with a local attorney in Alabama.
What Will a Father Need To Get Custody?
If a child’s father wants to get custody of their child after the mother dies, they will need to produce certain documents, which include the child’s birth certificate that has the father’s signature on it or an acknowledgment of paternity (AOP) form signed by the father and filed with the proper court.
If the parents of the child were divorced and the father did not have an AOP, they will likely not be able to obtain custody immediately. Instead, they will need to establish paternity in court.
Once the child’s father establishes paternity, if they had not signed their child’s birth certificate, the document will be modified to reflect their paternity. When a child’s mother passes away, the father can request paternity testing.
Fathers with valid AOP documents are usually given specific rights that may vary based on the location and facts of the case, which often include:
- Having their name included on the child’s birth certificate
- Receiving notification if an adoption proceeding occurs
- Having responsibility for supporting their child
When the father has a signed AOP, it does not necessarily mean they get visitation or custody rights automatically. When a child’s father does pay child support, it demonstrates that they desire to be involved in their child’s life.
How Courts Make Custody Decisions?
When a court makes any child custody decisions in Alabama, it has to follow the child’s best interest standard, just as courts do in other states. There are many different issues that a court will review to determine what will be in the best interests of the child, such as:
- The child’s:
- mental and physical health
- age
- gender
- The child’s living patterns, including their:
- home
- school
- community
- religious institution
- The parent and child’s emotional bond
- Each parent’s mental and physical health
- If the child is old and mature enough to inform the court about their preferences, it will consider them
- The quality of the child’s current education
- Each parent’s lifestyle and other social factors
- The parent’s ability to provide:
- food
- clothing
- shelter
- medical care
If a court does not decide that the factors listed above favor custody for one parent over the other, the majority of courts will award custody to the parent who will be more likely to provide their child with a stable environment in addition to fostering a relationship with their other parent. Courts often award custody to the parent who is the child’s current primary caregiver for a younger child because that will help maintain stability in their lives.
If the child is older, the court may award custody to the parent who can best maintain continuity in their relationships, religious practices, and education. Courts may also consider these issues when determining if someone other than the child’s parent should be awarded custody.
What Types of Support Should Children Receive?
When the custodial parent of a child passes away, they will need many different forms of ongoing support, especially financial and emotional. The effects of a parent’s death may continue for many years after it occurs.
Some issues that may arise when a child’s custodial parent passes away include, but are not limited to:
- Estate issues
- Social security benefits
- Testamentary trusts
- Life insurance
- The child being an heir
When one of the child’s parents was ordered to pay child support, they should continue making payments until the order is modified. The surviving parent, if they are awarded custody, may be able to make a claim against the child’s custodial parent’s estate, life insurance benefits, or social security to cover the expenses of raising the child.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
It is very important to appoint a testamentary guardian of a child in a parent’s will so that the court and interested parties will be aware of the parent’s intentions regarding who they want to care for their child if they pass away. Naming a testamentary guardian can help reduce the likelihood of a custody dispute.
When Should You Consider Choosing a Guardian?
As soon as an individual has a child, they should consider choosing a guardian. Whoever is chosen as a child’s testamentary guardian will have a great deal of influence on their life.
Because of this, parents should pick a guardian that they trust and, when possible, has already bonded with their child. Parents should make sure to consider if the guardian will have the time, energy, and income to care for the child.
A parent may want to discuss being a potential guardian with the individual they want to name to make sure they are willing and able to accept that responsibility. Parents should review and reassess their choices over time and make a different choice of guardian if necessary.
If an individual has trouble choosing a guardian to name, their lawyer can help them review their available choices and provide advice about how to choose.
When Do I Need to Contact a Lawyer?
If you are a parent with any type of issue or concern about child custody in Alabama if a custodial parent dies, it is important to reach out to an Alabama child custody lawyer. Your attorney will be able to help you determine who would be good choices for potential guardians and create an estate plan, including a will, that names the individual.
You should include all of your wishes in your estate plan, including who you want to take care of your child if they pass away. Putting a plan into place will help you gain peace of mind, knowing that your child will be cared for if anything happens to you.
You can use LegalMatch.com’s free and convenient lawyer matching services in as little as 15 minutes to find a custody lawyer near you. Simply enter your question or concern on the LegalMatch website, and you will receive responses from pre-screened and licensed attorneys near you who can help you create an estate plan that meets your needs and protects your child’s future.
