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custody after death of parent


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#1 peanut1521

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Posted 22 February 2012 - 09:38 AM

If the parent of a minor child dies does the custody of the child go to the adult siblings. Or does the child become a ward of the state if a will is not made prior to the death of the parent.



#2 Ted_from_Texas

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Posted 22 February 2012 - 10:23 AM

Custody of a child cannot be bequeathed in a will like money, a house or a piece of furniture.  The will can make the parent's wishes known, but a court of competent jurisdiction must back it up with a guardianship order.  But that may be beside the point.


You don't say whether the other parent is also deceased.  If one parent dies, sole legal and physical custody passes to the other parent by operation of law -- that is, automatically -- and no legal action is necessary for that parent to take possession of the child whenever he or she wishes.  If a third party (friend, family member, godparent, whatever) wants to oppose the other parent's possession of the child, he or she must file the appropriate action in court and present convincing evidence that possession by the other parent is not in the child's best interest.  This is difficult to do, as the starting legal assumption is that it's always in a child's best interest to be with his or her parent.  If this is your intention, you should consult a local family law attorney to find out (a) whether such an action is feasible or even possible, and (B) if so, how to go about it.



#3 peanut1521

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Posted 22 February 2012 - 12:41 PM

The father has given up all rights to this child. The child is 13 and moderate to severe autisim what wil happen to her.

#4 Ted_from_Texas

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Posted 22 February 2012 - 02:29 PM

Not sure what you mean by he "gave up" his rights.  Parental rights can only be terminated by order of a court of competent jurisdiction.  If the father's rights have not been terminated by court order, he is still the father with rights intact, and custody will pass to him on the mother's death.  He can consent to allow another person to care for the child or not, at his option.


If the father's parental rights have been terminated by court order, then the person(s) designated by the mother to care for the child in the event of her death, should obtain the mother's wishes in writing, so that if something happens to the mother they will have standing to go to court to obtain a legal guardianship.  Consult local counsel.



#5 Ted_from_Texas

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Posted 22 February 2012 - 02:38 PM

I just re-read your messages, and notice that you never actually said the mother intended to name a guardian, or that anyone would care to step up to care for the child.  If there is no one able (or willing) to become the child's guardian, she would indeed become a ward of the state and be placed in foster care at least until she becomes an adult, and possibly longer depending on the severity of her disability.  If she has adult siblings willing to care for her that's fine, but they are not legally obligated to do so.




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