What happens to child when custodial parent dies

Previous | Next
 rated by 0 users
Latest post Mon, Aug 21 2006 12:59 PM by LynnM. 8 replies.
  • Fri, Aug 18 2006 6:22 PM

    Sad [:(] What happens to child when custodial parent dies

    I am new here and I hope that I am posting in the correct area. The recent death of a friend (34yo) has sparked a sort of urgency to make sure my children are cared for if I should die. I have a 7 yo son that is from a previous relationship - no marriage involved. The father pays child support through the state of California - not in FL. I have sole custody and the bio father has never established visitation rights. I allow my child to see his father without those rights established b/c I thought it was important for my son to know who his real father was. I think this guy finds it much better to his lifestyle if he is not "ordered" to visit with his child and can do it on his schedule. He can then choose when he wants to see his child and not have the courts establish or do it for him. Anyhow, his ability to keep a job has me very concerned in the event of my death. I am married now and my husband has been in my son's life since he was 3. What does FL law say in the event that a custodial parent dies? Does custody remit to the non-custodial parent regardless of what is in the best interest of my child or whether the guy can afford to raise a child? My husband and I have a 16 month old together - so my son has a half sister. Would a man that can barely pay his bills, goes through jobs like it's no big deal, pays his child support late all the time - (as of today he is 3 months behind again) and basically has no sense of stability - be given rights to my child over my husband? My husband is way better financially off than my ex and would have no problem providing for my son. My ex...honestly, I am afraid of his inability to provide since he can't even pay his mortgage and had to have his mom co-sign on a car since he can't afford it. I plan to do a will soon and will put my wishes in there but I would also like to know my if my husband has rights and can continue to raise my child in the home/enviroment that he is used to. Or will this guy be able to uproot my son from the man he knows to be his Dad, his sister, school, friends...etc?
    Also, what happens to child support if I am to die? Does that cease in the event that my husband was to take full custody? Thanks for any imput to this delicate situation.
  • Fri, Aug 18 2006 7:03 PM In reply to

    re: What happens to child when custodial parent dies

    "I have sole custody and the bio father has never established visitation rights."

    I assume you mean that the court awarded you sole physical custody? If not, then legal custody issue is up in the air by default, assuming paternity has been established.

    "What does FL law say in the event that a custodial parent dies? Does custody remit to the non-custodial parent regardless of what is in the best interest of my child or whether the guy can afford to raise a child?"

    If biofather wants to come forward and seek custody, yes, he'll get custody unless someone steps forward to contest and has solid legal reasons why his getting custody would not be in the child's best interests.

    "I plan to do a will soon and will put my wishes in there but I would also like to know my if my husband has rights and can continue to raise my child in the home/enviroment that he is used to."

    Not automatically, no.

    "Also, what happens to child support if I am to die?"

    Assuming the biofather doesn't get custody, it will continue as before to whomever is appointed the child's legal guardian.

    Talk with a local family law attorney.
  • Fri, Aug 18 2006 7:04 PM In reply to

    More [=+=] By the way ...

    You *might* want to look into the possibility of having your husband adopt the child. Of course, you'd need the bio-father's consent. Perhaps if you offered him a written formal agreement whereby he would keep the same visitation rights, etc. as before, he will consent to the adoption -- which would relieve him of any child support obligations from the adoption onward.
  • Fri, Aug 18 2006 7:22 PM In reply to

    • LynnM
      Lawyer
    • Top 10 Contributor
    • Joined on Mon, Apr 3 2000
    • CA
    • Posts 28,248

    re: What happens to child when custodial parent dies

    You cannot "will" your child to someone like a table or a chair. The birth father has greater rights than someone not related to the child. OTOH, staying in the home he knows is also important.

    Bottom line - there is nothing you can do to prevent the father from seeking custofy.
  • Sat, Aug 19 2006 8:34 AM In reply to

    re: What happens to child when custodial parent dies

    You actually think I am trying to "will my child like a table or chair?" Are you fricken kidding me?? I am a concerned mother who is trying to make sure my child is cared for in the event that something happened to me. If I did not care, I would not even be seeking the advice of you or an attorney regarding this. I have valid concerns and they WILL BE addressed. I can't see a court giving a child to a bio parent that is unable to provide for him in the first place (and yes I know that will have to be proven in court and I see no problem there) just b/c he is the bio parent but I guess I will have to see. My story is a lot more involved than what information I gave you. This is a man that wanted nothing to do with his child and like I mentioned before, he has never bothered to go to court and establish any kind of custody/visitation rights. He was proven to be the father b/c of the child support issues and has paid it (when he can) but that is about it. He sees his child when it does not interfere with his social life. It's not like he is out there busting his butt to work and can't see his child due to that. That would make life here so much more easy to deal with. It's quite the opposite and has been for most of my son's life. My son has NEVER lived with this man and sees him a whopping 48 days (if that) a year. His first 3 years, he saw his son about 8 days a year. Wow, that is something to be proud of, huh?

    I am not the horrible mother who is trying to prevent the bio-father from getting his son. As I have expressed before, I do everything in my power to make sure that he is involved in his child's life. I am only trying to make sure that my child is provided for if I should die. Please understand that I am only tyring to understand the laws and make the best possible decision for my child.

    I have learned recently in my research that I can put in my will where I would like to see my children go and for what reasons. Whether the courts listen to that, well that is a completely different story. I thought I could come here and get some unbiased advice but it sounds like I better just stick to dealing with an attorney instead.

    Thank you to the first person that replied for your comments. Adoption would certainly be a great place to start. My guess is that he would LOVE to get out of paying support if he could since he can't afford the $300/mo. I would never take visitation out of it - I do believe my son should always have contact with his father. My problem is just his ability to care for my son if I was not in the picture. That is what this all comes down to.
  • Sat, Aug 19 2006 9:14 AM In reply to

    News [|*|] You may want to note that...

    only one person who replied to you is an attorney.
  • Sat, Aug 19 2006 10:10 AM In reply to

    re: What happens to child when custodial parent dies

    I am not a lawyer.

    My cousin was in a similar situation. His wife left him and the kids, one day. She conducted a lifestyle with drugs, booze and multiple sex partners.

    The father (my cousin) had sole custody of the kids. He was in the military and had a will designating custody to his brother should something happen to him.

    Sadly, my cousin died earlier this year. The mother went to court and slam-dunk, got custody of the kids. She also gets the considerable insurance benefits my cousin had in place to take care of his kids should something happen to him.

    My cousin was not married, so there was no possibility of a new wife adopting the children.

    My best suggestion to you is to talk to a family practice lawyer about your husband formally adopting your son. You could still continue the informal visitation with his biological father, but the bio-dad would have no legal rights to the boy, nor any obligation for support. From what you wrote, it seems to me that might just suit everyone just fine.

    Finally, I am an adult adoptee. I am pleased to hear you are permitting some relationship between your son and his bio-dad. I think that's really great.
  • Sat, Aug 19 2006 10:31 AM In reply to

    Note [#=#] to mlquessen

    You need to calm your tone down.

    "You actually think I am trying to 'will my child like a table or chair?'

    No one said YOU were--we don't know you. LynnM, an attorney, was providing you information that said children can't be willed like a table or chair.

    "Are you fricken kidding me??"

    Do NOT speak to others on these boards this way.

    There is no need to be so defensive. You came here seeking general legal information, which is what you are receiving.

    Next time, take a deep breath and leave off those first two sentences. They add nothing constructive to your message.

    Angie
    Community Moderator
  • Mon, Aug 21 2006 12:59 PM In reply to

    • LynnM
      Lawyer
    • Top 10 Contributor
    • Joined on Mon, Apr 3 2000
    • CA
    • Posts 28,248

    re: What happens to child when custodial parent dies

    Put whatever you like in the will. It has NO authority. The biological father still has significants rights and a judge can still award custody to him.

    THAT is a FACT.
Page 1 of 1 (9 items) | RSS

My Community

Community Membership New Users: Search Community