Custody & Kidnapping

Whether or not a non-parent can get custody if the mother passes away may depend on whether the child’s father is in the picture, primarily, and, secondarily, whether any other relatives apply. Some factors that may possibly be considered in this regard are whether the child knows his/her father, what their prior relationship has been, whether the father’s paternity (legal fatherhood) been established, whether the father wants custody, etc. Parents generally have the first right to a child’s custody unless the other parents is proven to be unfit or there are extenuating circumstances. Generally, although I cannot speak to your state, a non-parent has to prove that the parent is unfit and that it is in the child’s best interest to be with the relative in order to win custody.

Usually, the non-relative may apply for custody of the child once the parent passes. However, every state handles custody matters differently so you may want to talk to a lawyer in your state who handles custody to see what steps you can take now, if any, and what states you can take once the parent passes away. For example, you may want to ask an attorney if it would be helpful or not if the parent writes in his/her will who she wishes to have custody when she dies or whether that may be irrelevant. Also, often times if there are specific reasons that a judge already denied custody to the non-custodial parent, it can be useful for the person who is going to file for custody to have this information. It can be helpful to have copies of the court papers, the transcript of the court ruling, and any other information on the non-custodial parent’s background such as records of criminal convictions or information about a history of domestic violence to the relative who would be filing for custody. Sometimes a copy of the custodial parent’s will naming that person as the guardian can also be influential in court. Then, if both a non-parent and the parent applied for custody in court, the judge would make the ultimate decision.

I don’t know how your state handles this situation. Here is a link to lawyers in [YOUR STATE] LINK and here is some information on custody in general in case that is useful LINK