Child Custody after Death of Custodial Parent in Arkansas

In the state of Arkansas, if the custodial parent dies, then the non-custodial parent (i.e., the parent who does not have primary custody of the child) will generally get custody of the child automatically. In other words, there is generally no legal action that is required for the father to assume custody in the case of the mother dying.

However, there are exceptions to a father being automatically awarded custody of a child in the case of the death of the custodial parent. This is especially true if the surviving parent is deemed unfit. Further, the father will also have to have already established paternity.

In Arkansas, a father can gain child custody after death of custodial parent by doing the following steps:

• File an Acknowledgment of Paternity (“AOP”): The father must first fill out and file an Acknowledgment of Paternity form, which is a legal document that establishes him as the biological father
• DNA Testing: If there’s any doubts raised about paternity, the father can request a DNA test, which can be done using DNA samples from the father, the child, and sometimes other relatives if necessary
• Court Order: Once paternity has been established, the father can finally petition the court for custody of the child
  • The court will then utilize the child’s best interest standard when making a custody decision

Once again, a father automatically gaining custody of their child upon death of the custodial parent is contingent upon the father’s ability to provide a stable and safe environment for the child. As noted above, the court will always consider the best interests of the child when making a custody decision. That standard weights the following factors:

• Parental Fitness: The father’s ability to care for and meet their child’s needs
• Living Situation: The adequacy and stability of the father’s home environment
• Child’s Preference: The child’s wishes, if they are of a suitable age and maturity to express a preference
• Family Relationships: The child’s existing relationships with the father and other family members are also considered when determining whether or not the father gaining custody is in the child’s best interests

If there are any concerns about the father’s ability to provide a safe and nurturing environment for their child, the court will not grant the father automatic custody. Instead, they may appoint a guardian for the child or explore other custodial arrangements.

How Courts Make Custody Decisions

Historically, child custody laws for unmarried parents were not favorable for fathers who sought sole and primary custody of their children. However, both Arkansas and federal laws have now become more unbiased regarding a father seeking sole legal or physical custody of their child, especially in cases where the child’s other parent has passed away.

As mentioned above, child custody decisions in Arkansas will always be based on the child’s best interest standard. Once again, the child’s best interest standard is a legal standard that prioritizes a child’s welfare over the wants and desires of the child’s parents.

This means that in Arkansas, what is considered to be best for the child will always be placed over the wants and needs of the parents involved. Specifically, the best interest of the child standard is outlined in Arkansas Code § 9-27-102 (2023).

That statute details the best interest factors that the court considers when making custody decisions, including:

• The child’s physical and emotional needs
• The ability of each parent to meet those needs
• The child’s relationship with each parent
• The child’s adjustment to home, school, and community
• The mental and physical health of all individuals involved
• Any history of domestic violence or child abuse
• The child’s preference, if they are old enough and have enough capacity to form an intelligent preference.

All of the above factors help a court to ensure that the child’s well-being is the top priority in custody decisions. However, in the case where the child’s custodial parent has passed away, the other parent will generally gain custody of their child.

What Types of Support Should Children Receive?

In Arkansas, children should receive various types of support to ensure their well-being and development, including:

• Physical Support: A child should receive adequate food, clothing, shelter, and healthcare to maintain their physical health and growth
• Emotional Support: A child should receive love, care, and a stable environment to nurture their emotional health and resilience
• Educational Support: A child should receive access to quality education, including school supplies, extracurricular activities, and assistance with learning disabilities, if necessary
• Social Support: A child should receive opportunities for social interactions and activities that promote social skills and community involvement
• Safety and Protection: A child should receive a safe environment free from any abuse, neglect, and violence, with access to protective services if necessary
• Mental Health Support: A child should receive access to mental health services, counseling, and resources to address any of their psychological needs
• Developmental Support: A child should receive resources and activities that promote their cognitive, physical, and social development from infancy through adolescence

All of the above supports are aimed at helping children thrive in a safe, stable, and nurturing environment. Further, such supports are designed to provide a comprehensive foundation for a child’s development and growth.

Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?

There are many reasons why it is important to appoint a testamentary guardian of your children in your will, such as:

• Ensuring Continuity: Appointing a testamentary guardian provides a clear plan for who will care for your children if both parents pass away, ensuring continuity and stability in their lives
• Avoiding Court Decisions: Without a named guardian, the court will get the final say in deciding who will take care of your children, which may not align with your wishes
• Choosing the Right Person: Planning allow lets you select someone you trust and who shares your values and parenting style, rather than leaving it to chance
• Reducing Family Conflict: Having a named guardian can help prevent disputes among family members regarding your child
• Legal Clarity: It provides legal clarity and can expedite the process of appointing a guardian, reducing stress during an already difficult time

When Should You Consider Choosing a Guardian?

It is recommended to consider choosing a guardian for your child in Arkansas as soon as possible, ideally when your child is born. Once again, choosing a guardian will ensure that if something unexpected happens to you, you have already thought through who would be the best person to care for your child.

Additionally, it is also a good idea to periodically review and update your guardianship choice to ensure that it still aligns with your wishes. A local attorney in Arkansas will be able to help guide you through Arkansas’s rules regarding choosing a guardian.

When Do I Need to Contact a Lawyer?

If you have a child and are wishing to plan for your child’s future care in the case of your illness or injury, then it is recommended that you consult with an experienced Arkansas child custody lawyer immediately. Consulting with an attorney familiar in child custody and estate planning will ensure your child’s continued care and support.

LegalMatch can assist you in setting up a legal consultation with an experienced custody attorney in your area. A lawyer who handles custody cases will be able to help you understand Arkansas’s specific custody laws when it comes to the death of a custodial parent.

An attorney will be able to help guide you through creating an estate plan, which includes plans for unforeseen circumstances, such as illness, incapacity, or death. Finally, a custody lawyer will also be able to help you execute any necessary legal documents and represent you in court, should you need representation in the case of the death of a custodial parent.