All parents worry about “what happens to my child if I die?” For divorced or separated parents with any type of custody arrangement, the worry is intensified especially during times like this that bring a pandemic to our families and communities. Divorced or separated parents face unique challenges trying to answer this question.
In Virginia, unless a parent’s rights have been legally terminated, both parents are presumed to be fit custodians. In the event that one parent dies, the surviving parent is entitled to physical custody of the child, regardless of who has been awarded custody or whether or not they have a relationship with the child.
In some cases, this can be more complicated and stress-inducing if the other (surviving) parent lives far away or has strained relationships with your other family members. In these cases, you can be proactive to help ensure the best outcome for everyone involved.
The Rights of the Surviving Parent
Unless a court has determined the other parent is unfit by a court and their rights have been legally terminated, a surviving, natural parent has a constitutional right to parent their child. This means they have a legal right and do not need a court order to:
- Have physical custody of the child. Even if this includes relocating them to where their home is.
- Control who your child has contact with including contact with your family members, including your surviving spouse and other half and step-siblings.
If your family wants to establish custody or visitation, they will need to act quickly and file for those legal rights in court. Although they are your family, they are “third parties” whose rights to the child would need to be established by a court. Even if your child has a preference, it may have little to no influence on the outcome. The court determines what is best for the child at that time.
How Can You Prepare
Work with an attorney to prepare your estate documents (i.e. your Will/Trust) in advance. To ensure your assets and the best interest of your child and your family are protected, the following are a few important items to consider:
Although the surviving parent will have legal rights to your child, your will should identify a “guardian of the person” for the child. In the event that the other parent has died, had their parental rights terminated by the court, or is unwilling to take custody, this would be the person designated by you to take over the care and custody of the child upon your death.
You should designate a Trustee or “guardian of the estate” of the minor child person who would manage your child’s inheritance from you. The surviving parent would have no access to or control over these assets. If they wish to receive financial assistance, they could encourage the child’s relationship with your family or in some cases, be willing to leave the responsibility of raising your child to your family.
In the event that your family wants to contest the rights of the surviving parent, the following information should be kept with your Will:
- copies of legal papers related to custody including any history of domestic violence;
- a letter from you that describes the relationship between your child and the other parent as well as the relationship between your family and your child;
- a list of people who could testify about the other parent’s lack of involvement in the child’s life and information about what they might know;
- a list of professionals (i.e., attorneys, doctors, counselors) who are familiar with your situation;
- a written document waiving privilege (attorney-client, doctor-patient) in the event of your death, so that these professionals can be a fact witness in a court contest between the surviving parent and the person you want to have custody.
Our attorneys are particularly knowledgeable and experienced in both child-custody and estate law and can help answer any questions you might have and ensure you have the proper documents in place. Give us a call.