There are numerous different issues that may come up when a child’s custodial parent passes away in Delaware. Of the many issues that can happen, determining child custody after the death of a custodial parent is often one of the more complex.
Because every custody case is unique, it can be hard for a court to determine who should be given custody after a child’s custodial parent passes away. In many cases, the child’s biological father is not automatically given custody.
When a child’s custodial parent dies in Delaware, as in other states, there may be other individuals who want to become the child’s guardian, such as their grandparents. If the mother was the child’s custodial parent as well, pursuant to the child custody laws for unmarried parents, the child’s father will need to fulfill the proper legal requirements to establish paternity to obtain custody of their child.
If the father’s paternity is not established, they will need to have themselves legally recognized as the biological father of the child. In some instances, when an individual other than a parent is named the child’s guardian, they may not want to provide the father the right to visitation.
When this happens, courts can override these wishes and provide the father with visitation rights. For more information on the custody laws and establishing paternity in Delaware after a custodial parent’s death, an individual should consult with a local attorney in Delaware.
How Courts Make Custody Decisions
If a court has to make a child custody decision in Delaware, it will do so using the child’s best interest standard. When determining what is in the child’s best interests, the court will examine many factors, such as:
- The personal characteristics of the child, for example, their:
- age
- gender
- mental and physical health
- The living patterns of the child, for example, their:
- home
- school
- community
- religious institution
- The emotional bond the child has with their parent or parents
- The ability of each parent to give their child:
- food
- clothing
- medical care
- shelter
- The quality of the education in the school where the child is currently enrolled
- Both the mental and physical health of both of the child’s parents
- The lifestyles of both of the parents, as well as other social factors
- If the child is mature enough to share their preferences with the court, it can consider those when making its decision
If, after an examination of these factors, the court cannot determine that awarding custody to one of the parents over the other would be in the child’s best interests, it will typically give custody to the parent who will best be able to provide their child with a stable home environment.
Courts will often award custody to the parent or relative who will be more likely to facilitate a positive relationship with the other parent. Additionally, a court will typically give custody to the parent who was already acting as the child’s primary caregiver, especially when the child is younger, allowing them to have as much stability as they can. When the child is older, the court may choose an individual who can best maintain continuity in the child’s established relationships, education, and religion.
Courts will use the same or similar factors no matter who it is considering for custody. To find out more about the factors courts consider when determining custody in Delaware, an individual should reach out to a local lawyer.
What Will a Father Need To Get Custody?
When a biological father wants to obtain custody after their child’s mother passes away, they will need specific documents, such as a birth certificate with their signature on it or a signed acknowledgment of paternity (AOP) form. If the child’s parents never married, divorced, or the father does not have an AOP form, they will not likely be able to immediately get custody of their child.
As previously noted, a child’s father will need to establish their paternity through the court system. Paternity testing can be requested through the courts.
This typically involves DNA testing to confirm the father’s paternity. Once paternity is established, if the father had not signed the child’s birth certificate at birth, it can be revised to reflect their paternity.
When a child’s father does have a signed, valid AOP, they will likely have obligations to their child as well as rights over their child, such as:
- Getting notices if adoption proceedings are started
- Having their name put on their child’s birth certificate
- Being responsible for providing financial support to the child
Simply because a father has a valid AOP, it does not mean they automatically get custody or visitation rights after the death of the child’s custodial parent. To get more information on how a father can obtain visitation and custody rights in Delaware after their child’s custodial parent passes away, they should reach out to an attorney.
What Types of Support Should Children Receive?
If the custodial parent of a child passes away, the child should get all forms of support that individuals around them are able to provide. There are a variety of legal issues that may arise during these times, including:
- The child being an heir
- Social security benefits
- Testamentary trusts
- Estate issues
- Life insurance
When a non-custodial parent was ordered to pay child support, they should continue to make payments until they have a new court order stating they are no longer required to do so.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
A parent should name a testamentary guardian in a will for their child. This is an individual whom they want to care for their child in the event that they pass away.
Naming a testamentary guardian can give the court, as well as interested parties, an idea of the parent’s intent and wishes for their child. It can also be helpful to name a second choice in case their first choice is not available.
When Should You Consider Choosing a Guardian?
A parent should consider choosing a guardian for their child as soon as they can after they are born. This individual should have the income, time, and energy to care for a child.
It is important for a parent to review and revise this choice as time progresses to ensure that the best choice is still being made for their child.
When Do I Need to Contact a Lawyer?
If you are a Delaware parent with questions about what may happen if you, as the custodial parent, pass away or a parent who is not your child’s custodial parent with the same concerns, it is important to consult with a Delaware child custody lawyer. Your attorney can help you create an estate plan, including a testamentary guardian, that best fits yours and your child’s needs.
It only takes about 15 minutes for you to take advantage of LegalMatch’s no cost attorney matching services to find a custody lawyer in your area of Delaware. Simply submit your question on the website and you will get responses from licensed Delaware lawyers who are ready to help you resolve your concerns and plan for your child’s future.
