Custody question: child of divorced parents, when both deceased

[Arlee]

What is the name of your state? Georgia

Here's a hypothetical question, but one that is worrying my family: Who gets custody of the child of divorced parents after both parents are deceased?

My niece is very much a part of our extended family. She and her mother live near our parents and other siblings and the little one is very close with her cousins.

Her parents, now divorced, were middle-aged when she was born. Neither is in good health; neither is likely to live to see their daughter's 18th birthday.

My sister has specified in her will that I should raise my niece in the event of my sister's death. However, the girl's father is more likely to outlive her mother. If he does, we know very well that we will never see the child again.

Am I correct in assuming that as long as he lives, none of us has any visitation rights (much less custody rights)?

The further question: If she is still a minor when her father dies, what factors will come into play in determining custody? Will only the guardian specified by her father be considered? Her father has only one sibling, and she lives all the way across the country. The little girl only sees this aunt once every year or so. She would be much better off emotionally if she could be restored to the extended family that holds so many close ties for her. Who/what will decide the issue?

The father is very difficult to work with, although all of us have always taken care not to spoil his relationship with his daughter. My niece loves her daddy; they are close and we are glad of this. If he would believe me, I could assure him that if I were allowed the opportunity of raising her, his current visitation rights would be upheld and his position in her life would be in no way diminished. He is not one to return the favor, however. The child has mentioned numerous times that he has slandered her mother and the rest of us. We have every reason to believe that if my sister should die, he would gleefully uproot his daughter and cut her off from us, regardless of the emotional damage this would inflict on her.

As I mentioned, my sister has specified in her will that my husband and I should be guardians. Is there anything else we can do to strengthen an argument for custody should the worst occur?

Any (civilly-worded) advice will be appreciated.

Thanks,
Arlee

 

[CJane]

What is the name of your state? Georgia
As I mentioned, my sister has specified in her will that my husband and I should be guardians. Is there anything else we can do to strengthen an argument for custody should the worst occur?

Any (civilly-worded) advice will be appreciated.

Thanks,
Arlee

You can't will a child to anyone. If mom dies, dad gets custody. I'm pretty sure it really is that cut & dry.

 

[snostar]

You can't will a child to anyone. If mom dies, dad gets custody. I'm pretty sure it really is that cut & dry.

That is correct.

 

[Arlee]

You can't will a child to anyone.

Well, certainly I realize that. I am referring to the issue of specifying in a will one's wishes for guardianship. I hope I did not sound as if I view my niece as an inheritance to be haggled over. My first question was simply, "Am I correct in assuming that as long as he lives, none of us has any visitation rights (much less custody rights)..."


If mom dies, dad gets custody. I'm pretty sure it really is that cut & dry.

Ah, and there's an answer to the first question. Not the one I was hoping for, naturally, but the one I expected.

Can he also cut her off from any communication or visitation from the rest of us? I am afraid this answer, too, will not be one I want to hear. Can we even petition for this sort of consideration? Seems I heard of a similar case a few years ago where grandparents asked for visitation rights and were refused. That's one reason why I'm so concerned this far in advance.

Any takers on the second question -- if the father also dies while my niece is a minor, what factors might then determine guardianship? His will vs. her will? His wishes only, as he would have been the last custodial parent? Or would we then be able to petition for custody?

I'm very frightened about what might lie ahead for this child. Losing either parent will be a tragedy for her, and she is likely to lose one right after the other. We just want what will be best for her. (And no, we do not think that trying to wrest custody from an unwilling father would be a good thing -- we wouldn't try that!)

I hope to hear from others, too.

Thank you for the input,
Arlee

 

[CJane]

Question: What are the health issues that make you so certain these parents won't live to see their child reach her majority? What makes you so certain that they're likely to die in close succession?

In general, grandparents (and associated other family members) have no rights to visitation.

I have no idea how custody/guardianship is determined if both parents are dead, though I'd imagine if the child is old enough, their wishes will be taken into account.

 

[snostar]

Anyone can file for visitation, but if it goes against a parents wishes it is not likely to happen. If both parents were to pass away, then the remaining family would be the first choice (yes, you can petition for custody), but the decision of who takes custody of the child would be decided by a judge.

 

[Arlee]

Question: What are the health issues that make you so certain these parents won't live to see their child reach her majority? What makes you so certain that they're likely to die in close succession?

I'm sorry, I am not at liberty to discuss the specific medical issues at play. If it were my own medical history, I might be willing to go into more detail, but as it is, I do not feel I have the right to display the personal, possibly identifying details of others on a public forum. God willing, both parents may enjoy full health for years to come, but considering their ages and various, serious conditions, it is not statistically likely.

The child has many more years before she reaches the age of majority. It simply isn't likely that either parent will see that day. I will have to leave it at that.

I will say that although both parents were older than first parents usually are, they were both in good health when the child was conceived. It was not a matter of a child planned irresponsibly by parents who knew they would not live long enough to care for her properly. It is more a matter of grave, unforeseen misfortune.

The questions regarding guardianship/custody/visitation remain as posed.

Any other opinions/advice from anybody?

Thanks,
Arlee

 

[snostar]

The questions regarding guardianship/custody/visitation remain as posed.

I'll say it again, ANYONE can file for visitation, custody or guardianship at any time. Your question about the wills is irrelevant and meaningless. After the death of both parents the custody of the child will be decided by a judge based on the best interest of the child, not a request included in a will.

 

[Arlee]

I'll say it again, ANYONE can file for visitation, custody or guardianship at any time. Your question about the wills is irrelevant and meaningless. After the death of both parents the custody of the child will be decided by a judge based on the best interest of the child, not a request included in a will.

Yikes!

No need to say it again. You posted while I was replying to CJane, and I didn't see your response until now.

Your question about the wills is irrelevant and meaningless.

Well, my heavens, I had no idea. But I wouldn't find that out without asking, would I?

Is this also the case wherein deceased parents are still married? Is it then also pointless to specify wishes toward guardianship? This is confusing... I thought it was important to discuss the issue with potential guardians and to specify it in a will...? Judges do not actually take a deceased parent's last wishes into consideration in choosing a guardian? It wouldn't even be a help if two individuals were battling for that guardianship, and one of them had been specified in one of the parents' will? I am frankly shocked at the thought.

So what happens to the child immediately upon the remaining parent's death? Does she go into a court-ordered foster program? Does she go with whichever relative takes her by the hand, until the court rules on any further petition?

I'm not being a smartaleck here, I seriously need to know ahead of time how to proceed. Might as well start checking now as later.

Thank you for your input,
Arlee

 

[Arlee]

Is this also the case wherein deceased parents are still married?

Huh, should have said WERE still married! {

Arlee