In most cases, stability and continuity serve the best interests of a child. Therefore, under Virginia law, child custody after the death of a custodial parent may pass to the surviving biological parent. If the deceased parent named a legal guardian for the child in their will, the child might become the ward of the guardian named in the will.
Generally, however, the court grants custody to the surviving biological parent even if the deceased parent named a guardian for the child in their will. If the surviving parent is the father whose paternity has not yet been established, then the father would have to establish his paternity before a court would grant him custody of a child. The biological father might have to petition the court for DNA testing to confirm his paternity.
A court would usually grant custody to a surviving biological parent unless there is a compelling reason for which they should not have it. If the surviving parent is unfit, the court would appoint a legal guardian to assume responsibility for the child. The guardian might be the guardian named by the deceased parent in their will, the child’s grandparent, an adult sibling, or another family member, but that would not be a requirement.
If no family member is available to serve as the child’s guardian and the deceased parent did not name a guardian in their will, the child would enter the Virginia foster care system. A local attorney in Virginia would be able to provide more information about guardianship in that state.
How Courts Make Custody Decisions?
When parents are not married to each other or decide to separate or divorce, custody of their child or children is an issue. Either the parents must resolve it, or a court does so. The courts make child custody decisions in Virginia based on what is in the best interest of the child.
Understanding how judges make child custody decisions can help parents know what to expect and how to prepare for legal hearings on their child custody issues.
In applying the child’s best interest standard in Virginia, courts consider a variety of factors, including the following:
- The health and safety of the child
- Any history of child abuse by a parent
- Any history of domestic violence on the part of either parent
- The nature and amount of contact that the child has had with each parent
- Whether either parent has substance abuse issues with controlled substances or alcohol.
Other factors in the lives of both the parents and the child would be considered as well.
The law does not give preference to either the mother or father if both are alive. Instead, it examines each parent’s contribution to the child’s upbringing and, again, decides on the basis of the best interest of the child. Child custody laws for unmarried parents are not different from those for married parents seeking a divorce or separation.
What Types of Support Should Children Receive?
It is important to note that there are 2 types of custody: legal and physical. Legal custody is the right to make the key decisions about a child’s upbringing. These would be decisions about such things as the child’s education, health care, and religious affiliation.
Physical custody is essentially where the child lives, whether the child lives primarily with one parent or the other or spends equal amounts of time in both households.
Under Virginia law, parents are obligated to provide their children with financial support. Both parents have this obligation, and the status of the parents’ relationship does not matter. The Virginia state government wants to ensure that children have their needs met whether their parents are married or not, divorced or separated.
In Virginia, grounds to terminate the parental rights of a father or a mother exist in situations in which the parent has not been involved in their child’s life and has failed to provide financial support as they are legally required to do.
For example, if a father makes no effort to see his child and does not contribute to the financial support of the child, he may lose his parental rights. Specifically, if a parent has not had contact with their child or provided support for 6 months or more, they may lose their parental rights. In these situations, a person or government agency may petition to terminate the absent parent’s rights.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
It is important to appoint a testamentary guardian for one’s child because it allows a person to make important choices about the guardian who may assume parental responsibility for their child. This would be preferable to leaving the choice of a guardian to chance.
It is important to note that there are 2 kinds of guardians for a child. One is called a “conservator.” A conservator manages a child’s assets. A person would not need to appoint a conservator if their child is not endowed with assets.
A guardian of the person is responsible for taking care of a child’s overall well-being in the event of the death or incapacity of their natural parent. In appointing a guardian, a parent would want to think about the following issues:
- Skills and Values of the Potential Guardian: A parent would want to think about the skills or attributes that they want a guardian to have. A parent might want to be sure that a potential guardian has the time and inclination to care for the child and meet their needs. A parent may want the guardian to have specific religious beliefs and other shared values.
- Financial Stability: A parent would want to select a guardian who has adequate financial resources to care for their child. Child-rearing is expensive, and a person would not want to place the burden on a person who cannot afford it.
- Age and Physical Condition: A person may want to select a guardian who would be able to serve until the child reaches adulthood. This would ensure stability for the child. A person might also want a person whose physical condition is compatible with child-rearing.
- Personal Preference: While a parent might consult with other adults and even their children about their choice, they want to make the choice themselves. A parent might also want to have a second-in-line guardian. The child’s legal guardian is more than a caregiver. A legal guardian makes the decisions about a child’s upbringing in all areas of the child’s life. This includes ensuring that there is no child abuse in their home and making decisions about the child’s medical care.
- A Guardian’s Character: A parent wants to consider the best interests of their child. Possible candidates would be a known and trusted family member, family friend, or extended family member. A court has to make the appointment and would not approve a guardian who has a history of substance abuse or a criminal record.
If a parent chooses a guardian in their will, then they have the opportunity to discuss the appointment with the guardian and confirm that they are on board. Or, a prospective guardian may indicate that they do not wish to take on the role and should not be named.
Once a parent has made a final decision, they can then work with their lawyer to draft the documents needed to make the selection legally binding. Wills, trusts, and other legal documents can be used for a guardianship decision. A local Virginia attorney can advise a person as to what documents are needed and then prepare them.
When Should You Consider Choosing a Guardian?
A person may wish to choose a guardian for their minor child whenever they anticipate not being available to parent the child. There are 2 main situations in which this may occur: when both parents pass away or when the parents expect to be temporarily incapable of providing parental supervision of their child. The latter situation might arise when the parent undergoes certain types of medical treatment, for example.
Every parent of a minor child may want to have a will that addresses the topic of a guardian for their child if both of the child’s parents were to pass away.
When Do I Need to Contact a Lawyer?
If you have questions about child custody after the death of a parent, you want to consult a Virginia child custody lawyer. LegalMatch.com can connect you to a lawyer who can explain what might happen in your particular circumstances if you should pass away and what options you may have for directing the course of events in the direction you want them to take.
