Child Custody after Death of Custodial Parent in New York

In the State of New York, child custody after the death of a custodial parent can be challenging to resolve. All divorce and custody cases are unique, which can make it challenging for the court to determine who should get custody of a child if their parent dies.

People who may be willing or able to serve as guardians can include:

• Family friends
• Non-custodial father
• Grandparents
• Other relatives, such as grandparents, aunts, or uncles
• The state

According to the child custody laws for unmarried parents, if the mother of a child dies, the non-custodial father might be able to get custody of the child. In these types of cases, a father will have to establish paternity as well as get a formal acknowledgment of their paternity from the court.

A child’s father will have to provide a legal document to obtain custody of the child when their mother passes away, such as:

• An acknowledgment of paternity form
• The biological father will have to sign one of these forms and file it with the court
• The child’s birth certificate that includes the biological father’s signature

If a father who is divorced from the child’s mother does not have a valid acknowledgment of paternity, they will not have the right to obtain custody of the child. They can still prove their paternity in court and petition for custody in that manner.

If the father of a child did not sign the child’s birth certificate, once paternity has been established, a court can modify the birth certificate. Biological fathers can also request paternity DNA testing after the child’s mother passes away.

The requirements and procedures that an individual will have to follow for acknowledging paternity can vary by state. Because of this, it is important for a father in New York to review child custody procedures when they are trying to determine what to anticipate if they initiate paternity testing.

Signing the AOP does not immediately ensure that the father will have the right to child visitation or custody. When the father agrees to pay child support for the child, it shows that they are willing to be involved in their child’s life.

In these types of cases, a court can override a new guardian’s wishes if that guardian does not want to grant the father the right to visitation. This will also help make sure that the child has the ability and opportunity to build a relationship with their surviving parent.

When the parent of a child passes away, complex legal issues can arise related to any existing child custody orders or pending custody cases. There might be specific court decisions or laws that establish requirements about what happens when a child’s parent passes away.

Parents have the right to make decisions about their children in the United States. The majority of states also recognize these rights and limit the ability of nonparents to interfere with decisions made by a child’s parent.

If an individual who is not a parent but is a family member, such as a grandparent, wants to seek visitation or custody, the nature of the court case or custody order will determine whether they will be able to pursue those matters in court. For more specific information on the laws in the State of New York, an individual should consult with a local attorney in New York.

How Courts Make Custody Decisions?

When a court makes child custody decisions in New York, it will use the child’s best interest standard in New York. The best interests of the child can vary by case and include many different factors, such as:

• The child’s:
  • age
  • mental and physical health
  • gender
• The parent’s ability to give the child guidance
• The parent’s lifestyle and other social factors
• Impact on the child of changing the status quo
• The parent’s mental and physical health
• If they are mature enough to provide it, the child’s preference
• The emotional bond between parent and child
• Child’s established living pattern, such as their:
  • school
  • home
  • community
  • religious institution
• The parent’s ability to provide the child with:
  • food
  • shelter
  • clothing
  • medical care
• Quality of the child’s education in the current situation

If there are no factors that favor one parent over another, most courts will focus on which parent is more likely to provide their child with a stable environment and foster their relationship with their other parent. This may mean awarding custody to a parent who has been a child’s primary caregiver if they are young.

With older children, a court can award custody to the parent who can foster continuity in the child’s:

• Education
• Religion
• Neighborhood life
• Peer relationships

What Types of Support Should Children Receive?

If a child’s custodial parent dies, that child may need multiple types of support, such as financial and emotional. The death of a parent can have long-lasting and immediate effects on the child, and they will most likely require emotional support from their friends and family.

There are numerous different issues that can arise when a child’s custodial parent dies, such as:

• Estate issues
• Life insurance
• The child being an heir
• Social security benefits
• Testamentary trusts

When a child’s mother passes away, custody is typically given to the biological father when their paternity has been established and they are fit to care for their child. It is important to be aware that child support payments will need to be paid until the parent requests a modification and takes over custody.

The parent will then have the ability to make a claim against the custodial parent’s estate, their life insurance benefits, as well as their social security in order to help pay for any expense associated with raising their child. If someone else is appointed the child’s guardian, they will be able to receive child support from the non-custodial parent or the estate of the deceased custodial parent.

Why Is It Important to Appoint a Testamentary Guardian of Your Children in Your Will?

If a guardian is not appointed in case both of the child’s parents pass away, it can result in an individual who has sufficient interests in the child having to apply to a court to be appointed as the child’s guardian. This can result in disputes about who will serve as the child’s guardian.

If the child’s parents make a guardian appointment in their will, it will greatly reduce the likelihood of a custody dispute arising. If a dispute arises, having a testamentary guardian appointed in the will can provide a clear indication of the parent’s intentions regarding their child.

When Should You Consider Choosing a Guardian?

Appointing a testamentary guardian can give an individual a great deal of influence and power over the child’s life. Because of this great influence, it is important that parents choose an individual whom they trust, who has a bond with their child, and who will have the income, time, and energy to properly care for their child.

It can be helpful for a parent to ask permission from the guardian they plan to name to ensure that they are willing to accept the great responsibility of raising the child. It is also important for parents to reevaluate this choice as time passes and change it when necessary.

When Do I Need to Contact a Lawyer?

If you have a child and you have not yet appointed a guardian for them in your will, you should consult with a New York child custody lawyer. You do not have to have a large amount of property to have a will or an estate plan.

Your attorney will help you create a plan that protects your loved ones and ensures that they are cared for. Having this plan in place will give you peace of mind, knowing that your child will be cared for when you are not there to do so.

LegalMatch is a convenient place to find a New York custody lawyer who can give you advice, whether you are planning for your future or are already involved in a legal issue and need help. You can submit your concern for free on the website, and you will get messages from lawyers in your area who can help you resolve your child custody concern.