In Kentucky, as in other states, issues surrounding child custody after the death of the custodial parent can be challenging to resolve. Due to the fact that every custody case is different, courts may have a hard time determining who should be given custody when the custodial parent of a child passes away.
There can be different individuals who may be interested in becoming a child’s guardian once their custodial parent dies, including the child’s biological father, grandparents, as well as other relatives. When the mother of a child was the custodial parent, pursuant to the child custody laws for unmarried parents, a child’s father may then be able to obtain custody of the child.
If this occurs, the child’s father will have to establish their paternity. In other words, the father will have to petition a court to legally recognize them as the biological father of their child.
If a child’s guardian does not wish to provide the child’s father the right to visitation, the court may be able to override that individual’s wishes and permit the child to have a relationship with their father. To get more information on the applicable custody laws in Kentucky, it is important to consult with a local attorney in Kentucky.
What Will a Father Need To Get Custody?
When the father of a child wants to obtain custody of the child after the mother passes away, they will need to provide documents, such as an acknowledgment of paternity (AOP) form signed by the father or the child’s birth certificate with the father’s signature on it.
When a child’s parents were not married or were divorced, and the father does not have a signed AOP, it is not likely that they will be able to immediately obtain custody. The father will, instead, have to establish paternity in court, as previously noted.
After the father of a child establishes paternity, if their signature was not on their child’s birth certificate, the certificate will be changed to reflect their paternity status. When the child’s mother dies, the father can ask for paternity testing.
A father who has a valid AOP document is typically provided with certain rights that can vary depending on the facts of the case and the location, such as:
- Including the name of the father on the child’s birth certificate
- Being responsible for supporting the child
- Getting notification if adoption proceedings occur
If the child’s father has signed an AOP, it will not necessarily mean that they will get custody or visitation rights automatically. By paying child support, the child’s father shows that they want to be involved in their child’s life.
How Courts Make Custody Decisions
Whenever the court makes any type of child custody decisions in Kentucky, it will follow the child’s best interest standard. There are numerous different issues that courts will examine to figure out what will likely be in the best interests of the child, including their:
- Personal characteristics, including their:
- mental and physical health
- age
- gender
- The child’s living patterns, which includes their:
- community
- home
- school
- religious institution
- The emotional bond between the child and the parent
- When the child is mature enough to tell the court their preferences, it will consider those preferences
- The quality of the child’s education
- Each parent’s mental and physical health
- The parent’s ability to provide:
- food
- clothing
- shelter
- medical care
- Each parent’s lifestyle, as well as other social factors
When the court does not determine that the factors noted above favor custody for one of the parents over the other parent, most courts will give custody to the parent who is more likely to be able to provide their child with a stable environment. In addition, the court will likely award custody to the parent who is more likely to foster a relationship with the child’s other parent.
A court often gives custody to a parent who was acting as the child’s primary caregiver for a younger child, as that will help them maintain stability in their life. When the child in the case is older, the court may give custody to the parent who will best be able to maintain continuity in their education, relationships, and religious practices.
The court will also review similar factors when it is making a determination of whether an individual other than the child’s parent should be awarded custody.
What Types of Support Should Children Receive?
If a child’s custodial parent dies, that child will likely need numerous different types of ongoing support, including emotional and financial support. A parent’s death may have an effect on the child for many years, if not their whole lifetime.
Examples of the issues that can come up if a custodial parent passes away may include, but are not limited to:
- Life insurance
- The child being an heir
- Estate issues
- Social security benefits
- Testamentary trusts
If a child’s parent is required to pay child support, they should continue to make those required payments until their order is modified. The child’s surviving parent, when they are given custody, may be able to make a claim against the late custodial parent’s estate, their life insurance benefits, or their social security to help with the expenses of raising the child.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
It is important to appoint a testamentary guardian of an individual’s child in their will so that the court, as well as any other interested individuals, will know their intentions about who they want to take care of their child if they pass away. Including a choice of testamentary guardian in a will can help prevent future custody disputes.
When Should You Consider Choosing a Guardian?
Whenever an individual has a child, it is important for them to choose a guardian. The person who is chosen to serve in this position will have a great deal of influence over the child’s life.
Due to this amount of influence, a parent should choose a guardian whom they trust. If possible, they should also choose someone who has a bond with their child.
A parent should also take into consideration whether or not the named guardian will have the income, energy, and time required to care for the child. The child’s parents may wish to discuss the possibility of being a guardian with the person they will name to make sure that they are able and willing to accept that role.
As time goes on and the child grows, the parent should reassess their choice or choices and change the named guardian if they think it is necessary. If a parent is having trouble choosing who they should name as a guardian, an attorney can help them determine the choices and give them advice about who may be the best choice for their situation.
When Do I Need to Contact a Lawyer?
If you are a parent who has any questions or concerns about what happens to child custody when the custodial parent passes away in Kentucky, you should consult with a Kentucky child custody lawyer. Your lawyer can help you figure out who would be the best choices to serve as a guardian, help you create an estate plan, and draft a will naming your choice in guardian.
It is important to include all of the wishes you have related to your child in your estate plan. This will help you have greater peace of mind because you know that your child will be cared for as you wish after your passing.
You can take advantage of LegalMatch’s convenient and free attorney matching service, where, in as little as 15 minutes, you can find a custody attorney to help you. All you need to do is submit your concern or question on the website, and in around 24 hours, you will receive responses from attorneys who can create an estate plan for you that protects your child and ensures they will be cared for.
