Child Custody after Death of Custodial Parent in Oregon

In short, no. In the state of Oregon, if a mother dies, the father does not automatically get custody of the child. This is because the father must first establish paternity, and then the court must formally acknowledge it.

Once paternity has been established, the father can petition for custody. It is important to note that in Oregon, if the parents are married, paternity is automatically presumed. This means that the husband is legally recognized as the father of any child born during the marriage or within 300 days after the marriage ends, either by divorce, annulment, or death.

The court will then decide whether or not to grant the father custody based on the best interests of the child. Importantly, if a father already had custodial rights to the child and the other parent (in this case, the mother) dies, the father would generally automatically get custody in Oregon.

However, the father automatically gaining custody is contingent upon the father’s ability to provide a stable and safe environment for the child. As noted above, the court will still consider the best interests of the child, which includes factors such as:

• Parental Fitness: The father’s ability to care for and meet their child’s needs
• Living Situation: The adequacy and stability of the father’s home environment
• Child’s Preference: The child’s wishes, if they are of a suitable age and maturity to express a preference
  • While there is no specific age defined by law, the court generally considers the child’s wishes more seriously if they are at least 12 years or older
• Family Relationships: The child’s existing relationships with the father and other family members are also considered when determining whether or not the father gaining custody is in the child’s best interests

Importantly, if there are concerns about the father’s ability to provide a safe and nurturing environment for their child, the court may appoint a guardian for the child or explore other custodial arrangements.

How Courts Make Custody Decisions

Historically, child custody laws for unmarried parents were not favorable for fathers who sought custody of their children. However, both Oregon and federal laws have now become more unbiased regarding granting a father sole legal or physical custody of their child, especially in cases where the child’s biological mother has passed away.

As mentioned above, child custody decisions in Oregon will always be based on the child’s best interest standard. The child’s best interest standard is a legal standard that prioritizes a child’s welfare over the wants and desires of the child’s parents.

This means that in Oregon, what is considered to be best for the child will always be placed over the wants and needs of the parents involved. Specifically, the best interest of the child standard is outlined in Oregon Revised Statutes (“ORS”) 107.137.

That statute details the best interest factors that the court considers when making custody decisions, including:

• Emotional Ties: The emotional ties between the child and other family members
• Parent’s Interest: The interest of the parents in raising their child and their attitude toward the child
• Desirability of Continuing Relationship: The desirability of continuing an existing relationship with a parent or caregiver
• Abuse or Neglect: Any history of abuse or neglect by either parent
• Parent’s Ability: Each parent’s ability to provide for their child’s physical, emotional, and psychological needs
• Primary Caregiver: Which parent has been the primary caregiver, if applicable

All of the above factors help ensure that the child’s well-being is the top priority in custody decisions. However, in the case where the child’s custodial parent has passed away, the other parent will generally gain child custody after death of the custodial parent.

What Types of Support Should Children Receive?

In Oregon, children should receive various types of support to ensure their well-being and development, including:

• Economic Support: Parents should be able to provide for their children, including food, clothing, and shelter
  • Programs like SNAP food benefits and TANF cash benefits can all help with childcare costs and ensure families have the financial resources they need
• Health and Well-being: The child should have regular medical and dental care
  • Access to health care through the Oregon Health Plan (Medicaid), mental health services, and disability services are all available
• Family Support: The child should have opportunities for social interaction and building healthy relationships
  • Programs like the Family Support and Connections Program offer services such as parenting support, family and relationship health resources, and assistance with budgeting and household organization
• Educational Support: Parents should ensure their children have access to quality education and resources to support their learning and development
• Community and Cultural Support: Parents should promote connections to family, culture, and community

All of the above supports the aim to help children thrive in a safe, stable, and nurturing environment. Further, such supports are designed to provide a comprehensive foundation for a child’s development and growth.

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

There are many reasons why it is important to appoint a testamentary guardian of your children in your will. First, doing so provides a clear plan for who will take care of your children in the case of one or both parents passing away. This ensures continuity and stability in your child’s life.

Additionally, without a designated guardian, the court will get to decide who will care for your children. This may not align with your wishes and can also lead to lengthy legal battles between family members.

Appointing a testamentary guardian reduces the emotional stress on your children by providing them with a stable and familiar environment during a difficult time. That continuity helps to minimize the upheaval and uncertainty that can accompany such a significant loss in the child’s life.

When Should You Consider Choosing a Guardian?

It is wise to consider choosing a guardian for your child in Oregon under several circumstances. In fact, you should consider choosing a guardian for your child in Oregon as soon as possible, ideally when your child is born.

Choosing a guardian will ensure that if something unexpected happens to you, you have already thought through who would be the best person to care for your child. Additionally, it is also a good idea to periodically review and update your guardianship choice to ensure that it still aligns with your wishes.

In Washington, when determining who to name as a guardian over a minor child, the court will follow a set of criteria outlined in Oregon Revised Statutes (ORS) Chapter 125. A local attorney in Oregon will be able to help guide you through Oregon’s rules regarding choosing a guardian.

When Do I Need to Contact a Lawyer?

If you have a child and are wishing to plan for your child’s future care in case of an illness or injury, then it is recommended that you consult with an experienced Oregon child custody lawyer immediately. Doing so will ensure your child’s continued care and support.

LegalMatch can assist you in setting up a legal consultation with an experienced custody attorney in your area. A lawyer who handles custody cases will be able to help you understand Oregon’s specific custody laws when it comes to the death of a custodial parent.

They will also be able to help you plan for you and your child’s future. An attorney will be able to help guide you through creating an estate plan, which includes plans for unforeseen circumstances, such as illness, incapacity, or death. Finally, a custody lawyer will also be able to help you execute any necessary legal documents and represent you in court, as needed.