In New Jersey, issues involving child custody after the death of a custodial parent may be challenging to resolve. Because all child custody cases are unique, determining who should be awarded custody when a child’s parent passes away may be difficult for a court.
There can be several categories of individuals who may be willing to or may want to become the child’s guardian, such as their:
- Non-custodial father
- Family friends
- The state
- Grandparents
- Other relatives, such as grandparents, aunts, or uncles
When a child’s mother dies, pursuant to child custody laws for unmarried parents, the non-custodial father may be able to obtain custody of their child. If they have not already done so, the father will have to establish their paternity and have it formally acknowledged by a court.
If a father wants to obtain custody of their child after their mother dies, they will have to provide one of the following documents:
- An acknowledgment of paternity (AOP) form that has been signed and filed in court
- The child’s birth certificate with the father’s signature on it
If a child’s parents are divorced and the father does not have a valid AOP form, they will not be able to get custody immediately. The father will, instead, need to establish paternity in court.
If the child’s father did not sign the original birth certificate, the court will be able to modify it. After the child’s mother dies, the father can request paternity testing.
A father will be guaranteed certain rights when they have signed an AOP. Although the specific rights a father will have may vary by location or case, they often include the right to:
- Have their name on their child’s birth certificate
- Be responsible for supporting their child
- Be contacted if there is any type of adoption proceeding
Even if a father signs an AOP form, it does not automatically give the father rights to visitation or custody. When a child’s father agrees to pay child support, it shows a willingness to be involved in their child’s life.
If the child’s guardian does not want to give the father the right to visitation with the child, a court can override those wishes. This will provide the child with the opportunity to have a relationship with their father.
When there is a non-parent family member, for example, a grandparent, seeking custody or visitation, the court cases in the state or the existing custody order determine whether a non-parent can pursue custody or visitation in court. For more information on the specific custody laws in New Jersey that may apply, it is important to reach out to a local attorney in New Jersey.
How Courts Make Custody Decisions?
If a court makes any child custody decisions in New Jersey, it will follow the child’s best interest standard. Many factors will be examined in order to determine the best interests of a child, which can include, but are not limited to:
- The child’s:
- mental and physical health
- age
- gender
- The child’s living pattern that is already established, including their:
- home
- community
- school
- religious institution
- When the child is old and mature enough to share their preferences, they will be considered
- The parents’:
- ability to provide the child guidance
- lifestyle and other social factors
- mental and physical health
- The emotional bond between the parent and their child or children
- The parent’s ability to provide:
- clothing
- medical care
- food
- shelter
- The quality of the child’s current education
When these factors do not favor one parent over the other, the majority of courts focus on the parent who is more likely to provide the child with a stable environment and who will be able to better foster the child’s relationship with the other parent. In some cases, this means that a court will award custody to the parent who is already serving as the primary caregiver of the child, especially if the child is young.
When a child is older, the court may consider awarding custody to the parent who can better foster continuity in the child’s education, peer relationships, and religious practices.
What Types of Support Should Children Receive?
If a child’s custodial parent dies, they will most likely need many different types of support, including emotional and financial support. When a child’s parent passes away, it will have both immediate and long-lasting effects on the child, which means they will likely require emotional support from people around them.
Issues that can arise when a child’s custodial parent dies can include, but are not limited to:
- Life insurance
- The child being an heir
- Social security benefits
- Estate issues
- Testamentary trusts
Usually, when a child’s mother passes away, custody will be awarded to the child’s biological father if they have established paternity and have demonstrated they are fit to care for their child. Paying parents should be aware that child support payments must still be paid until the surviving parent requests a custody modification and it is granted.
Once the non-custodial parent is awarded custody, they will be able to make a claim against the estate of the custodial parent, their life insurance benefits, and their social security to help cover the expenses of raising the child. If a non-parent is appointed the child’s guardian, they will be entitled to child support from the non-custodial parent or from the deceased custodial parent’s estate.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
When the parents of a child do not provide instructions regarding who they want their child’s guardian to be if they pass away, a person who has an interest in the child’s life may need to apply to a court to be appointed their guardian. If this occurs, a dispute may arise regarding who the child’s guardian should be.
When a parent makes an appointment of a guardian in their will, it will reduce the likelihood that a custody dispute will occur. Although disputes can still arise, when the child’s parent appoints a guardian, it will provide information about their intentions for their child.
When Should You Consider Choosing a Guardian?
When possible, a parent should choose a guardian to name in their will as soon as possible after they have a child. The person they choose will have a large amount of power and influence over the child’s life.
Because of this, a parent should pick a guardian that they trust and who has the time, finances, and energy to properly care for them. The parent may also want to ask the person who is the named guardian if they are willing to accept the responsibility.
A parent should also assess this choice as time goes on to ensure the individual is still a proper choice. Modifications can be made if it is necessary to choose another guardian.
When Do I Need to Contact a Lawyer?
If you need assistance with or have any questions about child custody and what will happen to your children if you pass away, it is very important for you to consult with a New Jersey child custody lawyer. Your attorney can help you implement a plan that ensures that your child is cared for in your absence.
If you have children, you need to have a written recording of who you want to care for them if you pass away. It will give you more peace of mind knowing that your children will always be cared for by someone you chose.
You can easily find a child custody attorney for you at no charge in just a few minutes on LegalMatch.com. All you have to do is fill out the online form and submit it. In about 24 hours, you will get answers from licensed attorneys in your area who can help you resolve your child custody concern.
