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stemnyjones's avatar

What happens to the child if the mother dies and the father was never around, but mom didn't have full custody?

Asked by stemnyjones (3959 points ) May 24th, 2012

Say there’s a three year old who has always lived with her mother, and has only seen her father on 3 – 4 occasions since she was born – but the father signed the birth certificate, and although he never comes around, the mother never sued for full custody. The father lives 200 miles away. The child has a very close relationship with the mother’s family, who lives in the nearby area.

If the mother dies, will the child still automatically go to the custody of her father, despite the fact that the child will be plunged into a place she’s never been to, surrounded by people she doesn’t know, and ripped away from the people she has known all her life? Or would the child be placed with the mother’s immediate family, at least temporarily?

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10 Answers

gailcalled's avatar

The mother’s family can sue for custody. They should consult a first-rate family attorney.

creative1's avatar

Since the biological is known, the state would try to place the child with him over a family member since he is the closest known relative. They would do a dna test since he isn’t on the birth certificate but that would be the route they would go. Now if the bio father didn’t want custody they would then go to the next closest relative. I would suggest to have the mother do a will where it outlines where the child would go in the event of her death that way there would be no question as to where to place the child.

stemnyjones's avatar

@gailcalled Thanks for answering. So that means, before the mother’s family filed for custody, the child would immediately go to the father in the meantime, correct?

@creative1 Is it possible for the mother of a child whose father signed the birth certificate to dictate in her will that she child be placed with her family, rather than the biological father?

creative1's avatar

The bio father has rights so unless those rights are terminated he would win out of anyone getting custody unless there is something wrong with him where he is not able to care for the child. The mother should have something legal in place to make sure what her wants are happens if something should happen to her. I would also suggest looking into having the fathers rights terminated then he would have no right to the child in any circumstance.

gailcalled's avatar

The mother should have a will in which she names the guardians she wants; that will not override the rights of the father but will, at least, give the courts the mother’s intent.

Why won’t the mother sue for full custody?

woodcutter's avatar

Can we assume the father isn’t sending support checks? That could be a concideration if push comes to shove.

jca's avatar

Examples like this illustrate the importance of getting things legalized.

geeky_mama's avatar

We know of a single mother in a similar situation (although in our case, the father is now deceased) – and to ensure that her child would be cared for by her choice of parents (me & my husband) she gave us Legal Guardianship papers to sign shortly after the child’s birth.

She had a friend who was a lawyer who was willing to help her prepare the paperwork and her will free of cost – and we just went to our local bank where there was a notary to observe our signatures. The entire thing cost no one anything but their time – and we set it up shortly after her son was born.
The purpose was this – she didn’t want the father involved (and he wasn’t) with her son and she also didn’t want her son raised by her parents if something happened to her. Because we’re already raising her daughter, she wanted her son (our daughter’s half-brother) to be raised by us if something happened to her.

In our case it’s kind of a moot point now – because the father died a few years ago…but in the event that something happened to the mother, her will and the legal guardianship papers are clear in their intent that we should raise her son.. not her parents, not her sister or brother’s family.

As @gailcalled points out – a will is not an ironclad reason for a child to not be given to his biological relations..but it sure makes clear what the parent’s wishes were for their child.
Legal Guardianship papers cinch that up even tighter – and allow us to act immediately (we can take him for medical care, pick him up from school, etc.) and legally should the mother be incapacitated.

This is just my humble opinion..but part of being a responsible parent involves these sorts of matters. Communicate your wishes to your family (or dearest friends, if you’re estranged from your family), prepare a will, get life insurance and make sure your children are listed as beneficiaries for your policies.
We’ve even gone so far as to create a printed document stored with all our financial paper work with a list of points of contacts and policy numbers—and we showed our closest kin where to find this info in our house in the event something happens to us.
My in-laws, parents and siblings know who we’ve chosen to care for our kids if something happens to us.
I think it’s doubly important to do this sort of thing if you’re a single parent..because it’s simple math, right? One less person around to sort things out if something bad happens.

cheebdragon's avatar

They try to locate the closest living relatives, if no one can be found or no one wants to take custody of the child, the child will go into foster care.

puertomex's avatar

I have a 7 yr old who was placed in my care by mother’s request because cps was involved due to injury to child and they would not let her take her home, we had her in our care placed by cps for 2 weeks when her mother died, her bio father is no where on legal documents, what happens to her now, if no know relative comes forward, will we be able to keep her in our care and adopt her?

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