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;
  • Grandparents;
  • 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.

How Courts Make Custody Decisions?

Almost all courts use a standard that emphasizes the “best interests of the child” when deciding custody issues. The best interests of a child vary from case to case and encompass many factors, including:

  • Child’s age, sex, and mental and physical health;
  • Parent’s mental and physical health;
  • Parent’s lifestyle and other social factors;
  • The emotional bond between parent and child, as well as the parent’s ability to provide the child guidance;
  • Parent’s ability to provide the child with food, shelter, clothing, and medical care;
  • Child’s established living pattern (school, home, community, religious institution);
  • Quality of the child’s education in the current situation;
  • Impact on the child of changing the status quo, and;
  • A child’s preference is if the child is mature enough to express an opinion.

Assuming that none of these factors favor one parent over the other, most courts usually focus on which parent is likely to provide the children a stable environment and better foster the child’s relationship with the other parent. This may mean granting custody to the parent who has been the child’s primary caregiver with younger children. With older children, the court may award custody to the parent who can foster continuity in education, neighborhood life, religious institutions, and peer relationships.

Why is it Important to Appoint a Testamentary Guardian of Your Children in your Will?

In general, failure to appoint a guardian in the event both parents die will likely result in some person who has a “sufficient interest” in the child, needing to apply to the Family Court or Supreme Court to be appointed guardian. This could result in dueling sets of relatives as to who should be the guardian. If you make the appointment in your will, and no dispute arises regarding the appointment you make, no court order is necessary because the appointment takes effect under the Guardianship of Infants Act.

But, if a dispute does arise and an application is made to the Family Court, your nomination in your Will of a guardian provides a clear statement of your intentions to the court, even though it does not bind the court.

When Should You Consider Choosing a Guardian?

Because the appointment of a Testamentary Guardian gives that person a great deal of power and influence over the life of your child, it is crucial to choose someone who has a bond with your child and has the necessary time, age, energy, responsibility, and income to properly care for your child. Communicating in advance and seeking permission from that person on whether he or she is willing to accept that responsibility can be helpful. You can assess whether the guardian shares your values regarding education, religion, and morality, their lifestyle choices and whether they will promote your child’s relationship with other family members.

This choice should be reassessed over time, and your will can be modified if necessary. Appointing a guardian of your children in your will can reduce the possibility of conflict between family members over who is responsible for your children when you pass away. Even if a dispute does arise, you have provided the court with a clear statement of what you consider is in the best interest of your child.

When Do I Need to Contact a Lawyer?

If you did not appoint a guardian for your child in your will, it may be useful to discuss this option with your local child custody attorney. Especially, if you have a long-term illness and are worried about the well-being of your child in case of your passing, it may be helpful to seek guidance on this issue.