Legal Question in Family Law in Massachusetts
Death of custodial parent
My husband's ex is very sick. We live in MA. They were never married but have a 10 yr old son. She has custody. He has visitation rights but hasn't seen him since he was four. So if she dies are they required to contact him? And will he be able to get custody?
2 Answers from Attorneys
Re: Death of custodial parent
Your husband should become proactive and file a modification action-now-. He needs to be in place to avoid an uglier guardianship proceeding than he would otherwise face. If he is a fit parent, he has a Constitutional right to raise his child -- and he must be proven "unfit" by clear and convincing evidence.
His lack of contact certainly raises a red flag as to "fitness," because the child doesn't know him. Thus, he might arguably not be able to care for all of the particular needs of the child -- the emotional ones.
Again, your husband should be getting pro-active if he wants a shot at raising his son if the mother dies.
Re: Death of custodial parent
It depends on the paternity order. If he is concerned, he should have acted before, or take affirmative action now.