In Minnesota, as in other states, issues that arise involving child custody after the death of a custodial parent can be challenging to resolve. Due to the fact that every case will be unique, it can be difficult for courts to determine who should be given custody when the child’s custodial parent passes away.
There are numerous types of examples of individuals who may want to become the child’s guardian, such as grandparents, the child’s biological father, and other relatives. When the child’s mother was the child’s custodial parent, the child custody laws for unmarried parents provide that a non-custodial father may be able to get custody of the child.
In these types of situations, the child’s father will have to establish paternity. This would require the father to have a court recognize that they are, in fact, the father of the child.
When a child’s father seeks custody of the child after the mother passes away, they will be required to produce certain documents, including the birth certificate of the child with the father’s signature on it or an acknowledgment of paternity (AOP) form that was signed by the father and has been filed with the proper court.
If the child’s parents were divorced and the father of the child does not have an AOP, they cannot immediately obtain custody. The father, instead, will have to establish paternity in court.
Once the father has established their paternity, if they did not sign the child’s original birth certificate, the court can modify the document to reflect paternity. After the child’s mother dies, the father will be able to request paternity testing.
A father who has a valid AOP document is typically provided specific rights that can vary based on the facts of their case and their location, such as:
- Being contacted in the event of an adoption proceeding
- Being responsible for supporting their child
- Putting their name on their child’s birth certificate
If an AOP has been signed by the father, they will not automatically receive visitation or custody rights. If the father agrees to pay child support, it will show that they have a desire to be involved in their child’s life.
If the child’s guardian does not want to give the father the right to visitation, the court will be able to override their wishes and give the child the opportunity to have a relationship with their father.
When an individual who is not the biological parent of the child, for example, a grandparent, seeks visitation or custody, state laws will determine whether or not the non-parent is able to seek these rights in court. To get more information on custody laws in Minnesota, a parent should consult with a local attorney in Minnesota.
How Courts Make Custody Decisions
If a court makes child custody decisions in Minnesota, it will follow the child’s best interest standard, just as courts in other states. There are multiple issues that courts review to figure out what is in the best interests of the child, including, but not limited to:
- Each parent’s mental and physical health
- If the child is old and mature enough to state their preferences, the court will consider them
- The quality of the child’s current education
- Each parent’s lifestyle and other social factors
- 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
If the court does not determine that these factors favor one parent over the other, most courts will give custody to the parent who is more likely to provide the child with a stable environment as well as foster a relationship with their other parent. In many cases, the court awards custody to the parent who is already acting as the child’s primary caregiver for younger children, as that is more likely to maintain stability.
When a child is older, a court may award custody to the parent with the ability to maintain continuity in their religious practices, relationships, and education. The court may also consider this when determining if someone other than the parent of the child should be given custody.
What Types of Support Should Children Receive?
If a child’s custodial parent dies, that child will need many different types of ongoing support, including emotional and financial support. If a parent passes away, their child can be immediately severely affected, which may continue for many years afterward.
Examples of issues that may come up if a child’s custodial parent passes away include, but are not limited to:
- Life insurance
- The child being an heir
- Estate issues
- Social security benefits
- Testamentary trusts
When the child’s mother was their custodial parent, and they passed away, custody is commonly awarded to the child’s father when their paternity is established and they are able to care for the child. If a parent has been ordered to pay child support payments, they should continue to do so until they obtain a modification of their current order from the court and are awarded custody.
When the child’s surviving parent is given custody, they may be able to make a claim against the child’s custodial parent’s estate, life insurance benefits, or social security to help them cover the expenses of raising the child. If a non-parent becomes the child’s guardian, they will also be entitled to get support from the non-custodial parent or the custodial parent’s estate if they passed away.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
When a child’s parents do not name in writing the person they want to serve as their child’s guardian when they pass away, someone who has interest in the child’s life may have to apply to be appointed as the guardian. When this occurs, disputes may arise regarding who should be appointed the child’s guardian.
If the parents of a child name someone who they want to be their child’s guardian in their will, it is likely to reduce future custody disputes. Even if a custody dispute does arise, if the parents name a testamentary guardian, it will give the court information about the parent’s intentions about who they want to care for their child.
When Should You Consider Choosing a Guardian?
When an individual has a child, it is advisable for them to create a will that includes their choice of testamentary guardian as soon as they can. The individual who is named as the testamentary guardian will have a great deal of influence over the child’s life.
Due to this influence, a parent should choose an individual as a guardian whom they trust and if possible, who already has a bond with their child. It is important for a parent to consider whether or not their chosen guardian has the income, energy, and time to care for the child.
A parent may want to consider discussing the issue with a potential guardian to make sure they are willing and able to accept the responsibility. A child’s parent should reassess their choice as time goes on and change the guardian they chose if necessary.
An attorney will be able to help a parent determine who would be the best choice to name as a guardian for their child as well as create an estate plan, including a will, that fits their needs.
When Do I Need to Contact a Lawyer?
If you are a parent who has an issue, question, or concern about child custody in Minnesota after a custodial parent passes away, it is essential to consult with a Minnesota child custody lawyer. Your lawyer will be able to help you create and implement an estate plan that will ensure that your child will be properly taken care of after you pass.
It is important for you to put all of your wishes in your will, including who the individual is you want caring for your child in the event you pass away. Having a plan in place will give you peace of mind knowing that your child’s future is planned for.
LegalMatch.com is a free and easy way to find a child custody lawyer in your area in as little as 15 minutes. All you need to do is enter your question on the website and you will get messages from licensed lawyers in your area who will help you create a plan for protecting your child’s future.
