Custody & Kidnapping

Generally, if the parent who is the sole custodian becomes incapacitated to where she can no longer take care of the children or she passes away, the other parent is usually the first in line to get custody since parents generally have the right to custody over non-parents. However, it may be possible that another relative could apply in court for custody at that time to try to prove that the father is unfit and that it’s in the child’s best interests to be with the other person. Proving a parent to be unfit in the eyes of the law, however, may be a tough standard to meet.

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 give 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 do not know if writing who you want to have custody in a will would make a difference in a custody case or if it would have any legal effect if the father filed for custody in court. You may want to ask a custody lawyer about that.

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, if you feel strongly that the father should not raise the child upon your death. A lawyer can tell you if it may help in a future court case if you wrote in your will who you wanted you to have custody when you die. I don’t know how STATE would address this issue. Here is a link to lawyers in STATE :LINK