Child custody after the death of a custodial parent can be a difficult issue to resolve in Massachusetts, as in any other state. Because all custody cases are different, it can be difficult for a court to decide which party should be awarded custody of the child when the child’s parent passes away.
There can be different people who want to or can serve as the child’s guardian, including:
- Non-custodial fathers
- Grandparents
- Other relatives, for example, grandparents, aunts, or uncles
- Family friends
- The state
When a child’s mother is their custodial parent, the child custody laws for unmarried parents provide that a non-custodial father may be able to get custody of their child. In these types of situations, the child’s father will have to establish paternity, which may include having a court formally acknowledge that they are, in fact, the child’s father.
When the father wants to obtain custody of the child after their mother passes away, they will need to provide a legal document, such as:
- The child’s birth certificate that has their signature on it
- An acknowledgment of paternity (AOP) form that has been signed by the father and filed with the court
When the child’s parents are divorced and the child’s father does not have a valid AOP, they will not be able to get custody of their child immediately. They will, instead, have to establish paternity in court.
When a child’s father did not sign the child’s original birth certificate, the court can modify the document. After the death of the child’s mother, their biological father may request paternity testing.
A child’s father is guaranteed rights when they have signed in AOP. Although the specific rights a father will have may be different based on the location or facts of the individual case, they often include the right to:
- Be responsible for supporting the child
- Have their name put on their child’s birth certificate
- Be contacted if an adoption proceeding occurs
When a father signs an AOP form, it does not automatically give them the right to child custody or child visitation. When a child’s father agrees to pay child support, it demonstrates that they want to be involved in their child’s life.
In these situations, when the new guardian of a child does not want to allow the father the right to visitation, the court can override those wishes. This will provide the child with the ability to have a relationship with their other surviving parent.
When a family member who is not a parent of the child, for example, a grandparent, seeks custody or visitation, the custody order that is in place or case precedents in the state will determine whether or not a non-parent can pursue custody or visitation in court. To get more information on the specific custody laws of Massachusetts, it is important to consult with a local attorney in Massachusetts.
How Courts Make Custody Decisions?
Courts that make child custody decisions in Massachusetts use the child’s best interest standard. There are many issues that are reviewed by a court to determine what is in the best interest 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
- If the child is old and mature enough to share their preferences, the court will consider them
- The emotional bond between parent and child
- The parent’s ability to provide:
- food
- clothing
- shelter
- medical care
- The parent’s lifestyle and other social factors
- The parent’s mental and physical health
- The quality of the child’s current education
If these factors are examined and do not seem to favor one of the parents over the other, the majority of courts will award custody to the parent who is more likely to give the child a stable environment and foster a relationship with their other parent. It is common for custody to be awarded to the parent who was serving as the primary caregiver when the child is younger to maintain stability.
When the child is older, the court may give custody to the parent who can better foster continuity in the child’s education, relationships, and religious practices. These principles may also be applied by a court when deciding if another party should be awarded custody and deciding between multiple parties if there is more than one interested individual.
What Types of Support Should Children Receive?
When a child’s custodial parent dies, the child will very likely require multiple forms of support, including emotional and financial. When a child’s parent passes away, it can have both immediate and long-lasting effects on the child, which means they will often require emotional support from the individuals around them.
There are many different issues that may arise when a custodial parent dies, including:
- The child being an heir
- Social security benefits
- Testamentary trusts
- Estate issues
- Life insurance
If a child’s mother has passed away, custody is often awarded to the child’s biological father if they have established paternity and are fit to care for their child. It is important for parents to be aware that ordered child support payments must be paid until the surviving parent obtains a modification from the court and is given custody.
Once the other parent has been given custody, they may be able to make a claim against the custodial parent’s estate, their life insurance benefits, and their social security to pay for their expenses of raising their child. Non-parents who are appointed as guardians are also entitled to child support from the child’s non-custodial parent or from the custodial parent’s estate who is deceased.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
When the parents of a child do not name an individual that they want to be their child’s guardian if they pass away, an individual who has an interest in their child’s life may need to apply to a court in order to be appointed the guardian. If this happens, there may be disagreements about who the child’s guardian should be.
When a child’s parent appoints a guardian for their child in their will, it will greatly reduce the likelihood of a future custody dispute. Although disputes can still arise, when a testamentary guardian is named, it will give a statement of the parent’s intentions regarding who they want to care for their child.
When Should You Consider Choosing a Guardian?
Once an individual has children, they should create a will and name a testamentary guardian as soon as possible. The person who is named as the testamentary guardian will have a great amount of power and influence over their child’s life.
Because of this, it is very important for the parent to pick a guardian that they trust, who has a bond with the child, and who will have the energy, time, and income to properly care for the child. A parent should discuss the possibility of being a guardian with the individual they want to name to ensure they can accept the responsibility.
Parents should also review and reassess their guardian choice as time goes on and modify their choice as necessary. A lawyer can help an individual evaluate their choices and provide them advice on who they can or should name.
When Do I Need to Contact a Lawyer?
If you have any concerns, issues, or questions about child custody in Massachusetts after a custodial parent dies, appointing a guardian, or planning for your child’s care after you pass away, it is important to consult with a Massachusetts child custody lawyer. Your attorney can help you formulate and enact a plan that will make sure that your child is taken care of when you are gone.
You should outline your wishes and who you want to care for your child if you pass away in writing. Knowing your child will be taken care of when you are gone can provide you with great peace of mind.
You can find a child custody lawyer in your area at no cost using LegalMatch. You can submit your concern on the website, and you will get messages from licensed and pre-screened attorneys in your area who can help you plan for your child’s future.
