How Does Child Custody Work After the Death of a Parent or Guardian in Florida?

In Florida child custody cases, the parents may ultimately share custody. Each parent has a legal right to be involved in the decisions regarding their child’s life. The child custody order determines a parent’s legal rights, custody, and visitation.

Even if parents share joint custody, a child typically spends more time with one parent. That parent is known as the custodial parent since the child’s primary residence is with that parent. In some cases, a guardian might have primary custody of a child.

What happens when the custodial parent or guardian dies? Does custody automatically transfer to the child’s other biological parent? The answer depends on several factors.

Naming a Guardian for a Minor Child in a Last Will and Testament

Parents often name a guardian in their Last Will and Testament should they die while their children are minors. The parents may also establish a trust to hold the child’s inheritance until the child is an adult or turns a specific age. The documents are part of the parent’s estate plan.

Generally, the court grants custody to the guardian named in the Will unless there is evidence that the guardian is unfit to have custody of the child. However, a Will does not guarantee the court will grant custody or guardianship to the person named in the Will.

If the child’s other biological parent is alive, the terms of the deceased parent’s Will does not automatically override the other parent’s legal rights. While the court might consider the deceased parent’s wishes, the judge could grant custody of the minor child to the surviving biological parent.

The Court Typically Awards Custody to the Child’s Surviving Biological Parent

Unless there is a reason that a parent should not have custody, the court typically grants custody to the surviving biological parent. However, if the other parent is unfit, the court grants child custody to a guardian. The guardian might be the child’s grandparent, adult sibling, or other family member.

If no family member can serve as the child’s guardian, the child enters the foster care system. Depending on the seriousness of the allegations against the surviving biological parent, the court might allow the child to be adopted by terminating the parental rights of the surviving biological child.

What Happens if Paternity Has Not Been Established?

The biological father might not be listed on the child’s birth certificate. The mother and father might have had an agreement regarding support and custody that did not involve the court. If this is the case, paternity must be established before the court grants a man custody of a child after the custodial parent dies.

The biological father might need to petition the court for DNA testing to confirm paternity. A genetic test is 99.99% accurate for paternity. Florida courts accept genetic testing as evidence of paternity.

However, establishing paternity does not automatically grant a surviving biological parent custody. First, the court must determine whether the parent is fit to have custody. The judge must also determine if granting custody to the surviving parent is in the child’s best interest.

Adoption by a Stepparent After the Death of a Biological Parent

Sometimes, a stepparent might petition the court to adopt a stepchild after the child’s parent dies. This situation often arises when the identity of the child’s other parent is unknown or the surviving parent is unfit to have custody.

When a stepparent has already adopted a stepchild, custody typically goes to the stepparent after the custodial biological parent dies. The court must terminate the biological parent’s rights for the stepparent to adopt a stepchild. Therefore, the biological parent who lost their parental rights does not have a right to custody after the other parent’s death.

Does the Court Consider a Child’s Wishes When Granting Custody After a Parent’s Death?

A judge might consider an older child’s wishes when granting child custody after a parent’s death. For example, an older child might wish to remain with a stepparent and stepsiblings instead of moving in with a noncustodial biological parent.

Likewise, a child might wish for their grandparents to be their guardians instead of the surviving biological parent. Ultimately, the judge decides custody decisions based on the child’s best interest.

How Can a Parent Protect Their Children in the Event of the Parent’s Death?

Parents can discuss their situation and legal options for custody and guardianship with an Orlando child custody lawyer. A custody attorney explains the legal rights of parents in Florida. They can also assist a parent in drafting documents to address guardianship or custody after their death or refer the parent to an estate planning lawyer who can help.

Contact Our Child Custody Law Firm in Orlando, FL

Contact the experienced Orlando child custody lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803