Since each divorce and custody battle can vary, it is not easy for the court to decide who should receive custody of the child when the parent passes away. Some possible candidates who may be willing to serve as guardians include:
- Non-custodial father;
- Other relatives such as grandparents, aunts, or uncles;
- Family friends and;
- The state.
In the case of a mother’s death, the non-custodial father may be eligible to take over the child’s custody. For this to occur, the father will need to establish paternity, and the court has to acknowledge paternity formally. You will need to provide one of the following legal documents for child custody if the mother dies:
- Child’s birth certificate with your signature (only valid if you are the biological father);
- Acknowledgment of paternity form, the biological parent will need to file this form in court and sign it;
Without a valid acknowledgment of paternity, a divorced father will not be eligible or have full rights to take over the child’s custody. In this case, the father will have to go to court and prove his paternity. If you do not sign your child’s birth certificate, the court might modify it if you establish your paternity after this certificate’s issuance date.
Moreover, the biological father can request or initiate paternity testing after the death of the mother. Laws and procedures for acknowledging a child’s paternity vary from one state to another. Hence, it is important to refer to your state’s child custody procedures when collecting information about what to anticipate when initiating paternity testing. Keep in mind that as a father, you will guarantee certain rights when signing an acknowledgement of paternity (AOP).
Although they vary with each case, they will typically include the following:
- The right to be responsible for child’s support;
- The right to have your name on your child’s birth certificate;
- The right to be contacted and consulted in the event of an adoption proceeding;
Nevertheless, signing an AOP does not immediately ensure the right to child’s custody or visitation. If the father accepts to pay for child support, it shows his willingness to be involved in his child’s life and. In such cases, the court can override new guardians’ wishes if they will not be willing to grant the father the right to visitation and this ensures the child’s chance and ability to build a relationship with his surviving parent.
The death of a child’s parent can create complex legal issues in situations involving an existing child custody order or a pending custody case in court. For instance, in North Carolina, laws and court decisions establish specific rules about what happens to a child custody order after a parent’s death. Among the “fundamental rights and liberty interests” protected by the United States Constitution and North Carolina Constitution is the right of a parent to make decisions about a child. Furthermore, North Carolina laws and courts consistently recognize this right and limit the ability of nonparents to interfere with the decisions of a parent.
Court-established regulations regarding the effect of a parent’s death on a custody order or court case are consistent with this long-established principle. Generally, the courts distinguish between situations in which only the child’s parents are the only parties to a custody order from those in which other parties have rights too. When nonparent family members such as the child’s grandparents desire to seek custody or visitation, the nature of the custody order or court case determines whether the nonparent can pursue those wishes in a court action.