In Indiana, as in many other states, it can be challenging to resolve issues of child custody after the death of a custodial parent. Due to the fact that every custody case is different, it may be difficult for a court to determine who should be given custody of a child when their parent passes away.
There may be multiple individuals who are eligible or who want to serve as a child’s guardian, such as:
- Non-custodial fathers
- Grandparents
- Family friends
- Other relatives, such as grandparents, aunts, or uncles
- The state
If the mother of a child was their custodial parent, the child custody laws for unmarried parents state that non-custodial fathers can obtain custody of their child. With these situations, the father of the child will need to establish paternity legally, which may require having a court acknowledge that they are the child’s father.
When a child’s father seeks custody after the mother has passed away, they will have to show certain legal documents, including:
- The child’s birth certificate that includes the father’s signature
- An acknowledgment of paternity (AOP) form that has been signed by the father and filed with the proper court
If the parents are divorced and the father of the child does not have a valid AOP, they cannot obtain custody immediately. The child’s father will, instead, need to establish paternity in court.
If the father of the child did not sign their original birth certificate, the court can modify that document. Following the passing of the child’s mother, the biological father can request paternity testing.
Fathers of children are guaranteed certain rights when they have signed an AOP.
A child’s father is guaranteed certain rights when they have signed in AOP. Even though the specific rights the father will be granted can vary based on their location or the facts of their case, it typically includes the right to:
- Have their name put on their child’s birth certificate
- Be responsible for supporting the child
- Be contacted if an adoption proceeding occurs
If a child’s father signs an AOP, it will not automatically provide them with the right to visitation or child custody. If the father agrees to pay child support for their child, it shows that they are interested in being involved in their child’s life.
If the child’s guardian does not want to allow their father the right to visitation, the court may override those wishes. This will allow the child to still have a relationship with their father.
If someone who is not the child’s parent, such as a grandparent, is seeking visitation or custody or visitation, the state laws and governing custody order will determine if the non-parent is allowed to seek visitation or custody in court. For additional information on the custody laws in Indiana, an individual should reach out to a local attorney in Indiana.
How Courts Make Custody Decisions
A court that makes child custody decisions in Indiana, just like any other state, will use the child’s best interest standard. Issues that the court will examine to determine what will be in the best interests of the child include:
- If the child is old and mature enough to share their preferences, the court will consider them
- 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
- The parent’s ability to provide:
- food
- clothing
- shelter
- medical care
- Each parent’s lifestyle and other social factors
- Each parent’s mental and physical health
- The quality of the child’s current education
When these factors do not favor one of the parents over the other, most courts will give custody to the parent who is most likely to provide the child with a stable environment as well as foster a relationship with their other parent. Custody is commonly awarded to parents who were already the primary caregiver for younger children, as it is more likely to maintain stability in the child’s life.
If the child is an older child, the court may award custody to the parent who will be better able to keep continuity in the child’s relationship, religious practices, and education. This may also apply when courts are determining if a party other than the child’s parents should receive custody or if it is determining between multiple parties.
What Types of Support Should Children Receive?
If a child’s custodial parent passes away, they are going to need multiple types of ongoing support, including financial and emotional. If the parent passes away, the child can be affected both immediately and for many years to come.
Examples of the many different issues that may come up if a custodial parent passes away include:
- Estate issues
- Life insurance
- The child being an heir
- Social security benefits
- Testamentary trusts
When the mother of a child has passed away, custody will commonly be given to the child’s biological father if they have established their paternity and are willing and fit to care for the child. Parents should note that required child support payments have to be paid until the surviving parent gets a modification from the court and is awarded custody.
After the child’s surviving parent has been awarded custody, they may be able to make claims against the custodial parent’s social security, life insurance benefits, and estate to help pay for the expenses of raising the child. If a non-parent is appointed as a guardian, they will also be entitled to child support from the child’s non-custodial parent or from the estate of the custodial parent who passed away.
Why Is it Important To Appoint a Testamentary Guardian of Your Children in Your Will?
If a child’s parents do not name someone that they want to serve as a guardian for their child in the event that they pass away, someone with an interest in the child’s life may have to apply to a court to be appointed a guardian. When this occurs, there can be disputes regarding who the guardian should be.
If the parents of the child name a guardian in their will, it greatly reduces the likelihood that there will be a custody dispute in the future. Even though disputes may still come up, if a testamentary guardian is named by the parents, it will provide information on the intentions of the parent about who they want to care for their child.
When Should You Consider Choosing a Guardian?
After someone has a child, they need to create a will that names a testamentary guardian as soon as they can. The individual who is listed as the testamentary guardian will have a tremendous amount of influence and power over the child’s life.
Due to this issue, it is important for parents to choose a guardian whom they trust, who has a bond with their child, and who will have the time, energy, and income to care for the child. Parents should discuss the possibility of becoming the child’s guardian with the individual they want to name to make sure they can accept the responsibility.
A parent should be prepared to review and reassess their choice of guardian as time progresses and modify their choice if needed. An individual’s attorney can help them determine their choices and provide advice on who might be the best choice.
When Do I Need to Contact a Lawyer?
When you have any questions, concerns, or issues related to child custody after the death of a custodial parent in Indiana, it is essential to reach out to an Indiana child custody lawyer. Your lawyer will help you create and implement a plan that will ensure your child will be cared for after you pass away.
It is very important to put your wishes in writing, including who you want to care for your child if you pass away. Knowing that you have a plan in place to take care of your child if you pass will give you peace of mind.
LegalMatch can help you find a child custody attorney near you for free and in just a few minutes. Just submit your question or concern on the LegalMatch website, and you will receive messages from pre-screened and licensed lawyers near you who will help you plan for your child’s future.
