Issues that arise related to child custody after the death of a custodial parent can be challenging to resolve in the State of Nevada, as in any state. Because all custody cases are unique, a court may have difficulty determining who should be awarded custody after a child’s custodial parent dies.
In most situations, a child’s father will not automatically receive custody if the mother dies. There may also be other parties who are interested in being the child’s guardian, such as their grandparents or other relatives.
When the child’s mother was their custodial parent, under the child custody laws for unmarried parents, the father may then be able to obtain custody of the child through the proper legal process of establishing paternity. This means the father will need to legally establish their paternity by petitioning the court to recognize them as the biological father.
When the individual who is appointed the child’s guardian does not want to provide their father the right to visitation, a court can override those wishes and allow the child to establish a relationship with the father. For more information on the custody laws that may apply to an individual’s situations in Nevada, they can consult with a local attorney in Nevada.
What Will a Father Need To Get Custody?
If a child’s father wants to get custody after the child’s mother dies, they will need to provide certain documents, such as a signed acknowledgment of paternity (AOP) form or birth certificate with the father’s signature on it.
If the parents of a child are divorced or were never married and the child’s father does not have a signed AOP, they will not likely be able to get custody immediately. Instead, as noted above, the father will need to establish their paternity in court.
Once the child’s father has established paternity, if they did not sign their child’s birth certificate, it will be amended to reflect their paternity. The father can also request paternity testing.
When the child’s father has a valid AOP, they will typically be given certain rights and obligations. It is important to be aware that these rights may vary based on the location and facts of the case but typically include:
- Having responsibility for supporting the child
- Having their name listed on their child’s birth certificate
- Receiving notification of any adoption proceedings
Just because the father has a signed AOP, it does not mean they will automatically receive visitation or custody rights.
How Courts Make Custody Decisions
When a court makes any child custody decisions in Nevada, it has to do so using the child’s best interest standard. There are many different issues that a court may review to determine what is in the best interests of the child, such as:
- The personal characteristics of the child, which includes their:
- age
- gender
- mental and physical health
- The living patterns of the child, which includes their:
- home
- school
- community
- religious institution
- The emotional bond between the child and their parent
- The current quality of the education the child is receiving
- The mental and physical health of both of the child’s parents
- The ability of the parent to provide the child with:
- food
- clothing
- shelter
- medical care
- If mature enough to tell the court their preferences, it will consider the child’s preferences
- The lifestyle of each of the parents, in addition to other social factors
If a court does not determine that the factors listed above favor one of the parents over the other for custody purposes, the court will typically award custody to the parent who is better able to provide the child with a stable environment. Additionally, courts usually award custody to the parent who will be more likely to foster a relationship between the child and their other parent.
Courts often award custody to parents who were already acting as their child’s primary caregiver for younger children, as that helps them maintain stability. If the child involved is older, the court may award custody to the parent who can best maintain continuity in the child’s education, religious practice, and relationships.
Courts also examine similar factors when determining whether a party other than the child’s parent should be given custody.
What Types of Support Should Children Receive?
When a child’s custodial parent passes away, they are likely to need many different types of ongoing support, which includes financial and emotional support. The death of a parent can affect a child for many years after, if not for their entire lives.
Issues that can arise when a child’s custodial parent dies can include, but are not limited to:
- Estate issues
- Social security benefits
- Testamentary trusts
- Life insurance
- The child being an heir
If the child’s remaining parent has to pay child support, it is important that they continue to make those payments until they receive a modified order from the court. When a surviving parent is awarded custody, they may be able to make a claim against the deceased parent’s estate, life insurance benefits, or social security to help them with the expenses of raising their child.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
It is very important for parents to appoint a testamentary guardian for their child in their will so the court and other interested parties will be informed of their intentions for whom they want to care for their child when they die. Listing a choice and even a back up choice of testamentary guardian in a parent’s will can help them avoid future custody issues and disputes.
When Should You Consider Choosing a Guardian?
Whenever someone becomes a parent, it is important that they choose a guardian. A guardian of a child will have a great deal of influence over the child’s life.
Because of this great deal of influence, parents should name an individual whom they trust to be their child’s guardian. When possible, it is also good to choose an individual who has an established bond with the child.
Parents should consider whether their named guardian will have the proper time, energy, and income to care for the child. A child’s parents may want to ask the individual who they plan to name as the guardian whether they can accept the position to ensure they are willing to do so.
As time progresses and the child gets older, a parent should reevaluate their choice of guardian and change who they have named if they believe it is necessary. When a parent has trouble choosing a guardian, their lawyer can help them create a list of possibilities and narrow them down to the best choices for their situation.
When Do I Need to Contact a Lawyer?
If you are a parent in Nevada who has any concerns or questions regarding what will happen with the custody of your child if their custodial parent passes away, it is important to consult with a Nevada child custody lawyer. Your attorney will also be able to help you determine who is the best choice to name as your child’s guardian in your will and create an estate plan to ensure they are cared for.
LegalMatch offers a free and easy lawyer matching service that you can use in as little as 15 minutes to find a lawyer in your area who can help. Simply submit your question or concern on the LegalMatch website, and you will get messages from licensed member lawyers in about 24 hours who can help you create an estate plan that ensures your child will be properly cared for if you pass away.
