9.17.2020

Can a Custodial Parent Who Dies Protect the Kids?

This post is courtesy of Jennifer Reinkober, Regent Law 3L and current Wills, Trusts, & Estates student:


In the thought-provoking article, Can a dead hand from the grave protect the kids from darling daddy or Mommie Dearest? published at 31 Quinnipiac Probate L. J. 1 (Nov. 2017), Professor Lynne Marie Kohm discusses the legal conflicts and challenges that arise when a natural custodial parent dies, leaving behind a parent who could potentially be unfit to care for and raise the children left behind. 

Consider the example of an alcoholic mother who has neglected her children many times due to drunken binges and has put her children at risk time and again by driving while under the influence with the children in the car.  She and the children’s father divorced, and he may even have secured a custody arrangement that gave him primary custody of the children.  Perhaps she had little to no interaction with the children after the divorce.  However, if the father dies, by operation of the law, the children will likely be transferred to the care and custody of the surviving natural parent.  This can occur even if the mother has been what most consider an absent and misfit parent but continues to enjoy parental rights.

As disconcerting as this may sound, there is strong legal support for this position.  In the United States, there is a legal presumption that the natural parent will have custody of their children.  This holds true unless the parent has previously had her parental rights terminated.  The United States Supreme Court, in Troxel v. Granville, has held that parents have a constitutional right to rear their children.  This is a great rule, unless the parent isn’t in the habit of putting his or her children’s interests above their own. Time and again, it is seen that the surviving parent is generally the one who will take custody of the children, even if divorced or estranged from the deceased parent.

In order to prevent the type of scenario described above from playing out the custodial parent should do all in his or her power to ensure he or she has a valid will that reflects his wishes that the other natural parent should not gain custody of the children left behind, and some solid evidence why.  When a will goes through probate (the process by which the court proves the validity of the will), the court attempts to hold to the testator’s (the person making the will) intent as much as possible.  However, even a will may not be enough to protect the children unless the parent/testator provides clear and factual examples of why the surviving parent should not gain custody, such as a history of violence and abuse, neglect of the children, or a lack of stability.  These details should not be provided in a salacious manner, since the will becomes public record when it goes through probate, but those details should nonetheless be sufficient to allow the probating court to understand the gravamen of the issue.  Although still no guarantee, by providing as much clear and convincing evidence as possible, the custodial parent/testator is taking the necessary steps to look out for his children after his death.  It is also critical that the custodial parent/testator indicate who he wants the children’s guardian to be after he dies.  This provides yet more information for the court to consider when probating the will. 

After preparing the will, the parent/testator should also ensure that he files a copy of the will with his local court, have his attorney and the designated guardian retain a copy, and the guardian should be prepared to take possession of the child immediately upon the parent’s death. 

Anyone who is a single parent and who has concerns about his or her former spouse gaining custody of their children upon the parent’s death because of the former spouse’s previous abuse, addiction, or child neglect would be wise to consult a good estate planning lawyer and make a will that provides a plan for the children’s future.

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