In the State of Wisconsin, similar to other states, resolving issues of child custody after the death of a custodial parent can be difficult. Because each case is different and unique, it may be hard for the court to decide who should be awarded custody when a child’s custodial parent dies.
There are many examples of people who may desire to or be eligible to be a child’s guardian, including their non-custodial father, grandparents, and other relatives. When a child’s mother was the custodial parent, child custody laws for unmarried parents provide that a non-custodial father can get custody of the child.
In these cases, the father will need to establish their paternity, which may require them to have a court acknowledge that they are, in fact, the child’s father. If the father of a child is seeking custody after the mother has passed, they will need to show specific legal documents, such as the birth certificate of the child with the father’s signature on it or an acknowledgment of paternity (AOP) form signed by the father that has been filed with the proper court.
When a child’s parents are divorced, and the child’s father does not have an AOP, they will not be able to immediately get custody. Instead, the father will need to establish his paternity in court. Once paternity is established, if the father did not sign the original birth certificate, the court will be able to modify the document to reflect the father’s paternity.
A father can request paternity testing after a child’s mother passes away. Additionally, fathers who have valid AOP documents are given certain rights.
Although the specific rights provided can vary based on the father’s location and the facts of their case, it will usually include the right to:
- Be responsible for supporting their child
- Put their name on their child’s birth certificate
- Be contacted in the event of an adoption proceeding
If a child’s father has signed an AOP, it does not automatically give them rights to visitation or custody. However, if a father does agree to pay child support, it will demonstrate that they want to be involved in the child’s life.
If the guardian of the child does not wish to give the father the right to visitation, a court can override those wishes and allow the child to have a relationship with the father.
If an individual who is not a child’s biological parent, such as a grandparent, seeks visitation or custody, the state laws that govern the custody order will determine whether a non-parent can seek these things in court. For more information on the custody laws of Wisconsin, an individual should consult with a local attorney in Wisconsin.
How Courts Make Custody Decisions
Courts that make child custody decisions in Wisconsin follow the child’s best interest standard, just as courts do in other states. There are many issues that courts examine to determine what is in the best interests of the child, such as:
- If the child is mature enough and old enough to share their preferences, the court will consider them
- Each parent’s mental and physical health
- The quality of the child’s current education
- The child’s:
- mental and physical health
- age
- gender
- The child’s living patterns, including their:
- home
- school
- community
- religious institution
- The parent and child’s emotional bond
- The parent’s ability to provide:
- food
- clothing
- shelter
- medical care
- Each parent’s lifestyle and other social factors
If an examination of these factors does not favor one of the parents over the other parent, the majority of courts will award custody to a parent who is more likely to give the child a stable environment in addition to fostering a relationship with the other parent. In many situations, a court will award custody to a parent who is already acting as the child’s primary caregiver for a younger child because it will be more likely to maintain stability in their life.
When the child is older, the court may give custody to the parent who has the ability to maintain continuity in their relationships, education, and religious practices. This may also be considered when a court is making a determination of whether a party other than a child’s parent should be awarded custody or when it is determining who should get custody between multiple parties.
What Types of Support Should Children Receive?
When the custodial parent of a child passes away, they will need different forms of ongoing support, which includes financial and emotional support. When a parent dies, their child may be severely affected immediately, as well as for years afterward.
Some of the many issues that may arise when a child’s custodial parent dies include but are not limited to:
- Estate issues
Social security benefits
Testamentary trusts
Life insurance
The child being an heir
If a child’s mother passes away and they were the custodial parent, custody is often awarded to a child’s father if their paternity has been established and they are willing and able to care for their child. A parent should be aware that any child support payments they have been ordered to pay should be paid until the surviving parent obtains a modification of the order from a court and is given custody.
Once the child’s surviving parent is awarded custody, they may have the ability to make a claim against the custodial parent’s estate, social security, and life insurance benefits to help pay for the expenses of raising the child. When a non-parent is appointed as the child’s guardian, they are also entitled to receive support from the non-custodial parent or the estate of the custodial parent who died.
Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?
When the parents of a child do not name an individual whom they want to serve as a guardian if they pass away, an individual who has an interest in your child’s life may need to apply to be appointed as their guardian. If this happens, there may be disputes about who the child’s guardian should be.
When a child’s parents name a guardian for their child in their will, it will likely reduce custody disputes in the future. Although there may still be a custody dispute, when a testamentary guardian is named by parents, it provides information about the parent’s intentions regarding whom they would like to care for their child.
When Should You Consider Choosing a Guardian?
After having a child, a parent will need to create a will that names a testamentary guardian as soon as possible. The person who is named in the will as a testamentary guardian will have an enormous amount of influence and power in the child’s life.
Because of this, parents should pick someone to name as a guardian that they trust and who has a bond with their child, if possible. It is also important to consider whether the guardian will have the energy, time, and income to care for their child.
If possible, the parents may want to discuss the issue with the potential guardian to ensure they can accept the responsibility. Parents should also review and reassess their choices as time goes by and change their named guardian if necessary.
A lawyer can help parents decide the best choices for guardians for their children and create a will and estate plan to fit their needs.
When Do I Need to Contact a Lawyer?
If you have any type of question, issue, or concern about child custody after a custodial parent’s death in Wisconsin, it is important to consult with a Wisconsin child custody lawyer. A lawyer can help you draft and implement an estate plan that will make sure your child is properly cared for if you pass away.
You should put your wishes in writing in your will, including the person who you want to care for your child when you are gone. Knowing that you have a plan in place and your child will be cared for can give you peace of mind for their future.
You can find a child custody lawyer near you at no cost in your area with LegalMatch.com in as little as 15 minutes. Simply enter your issues on the website, and you will get messages from attorneys who are licensed near you who can help you create a plan to protect your child’s future.
