Legal Question in Family Law in Montana

custody of children upon death of mother that was remarried
The father was declared as the legal father with joint custody with the mother, in Missouri. The mother died in a car accident (DUI involved) in Montana. The legal father wants to retreive his children. Does the father now have legal custody? The step father says he is not releasing custody of the children and is threatening to adopt the two children.

Asked on 7/13/08, 2:47 pm

Carolyn J. Stevens CJ Stevens|Law

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Re: custody of children upon death of mother that was remarried

As we love to say, It Depends.

A court might have terminated biological father's parental rights, in which case biological father has no rights.

If bio father has been an active dad, he might be the logical choice for residential parent.

If a court approved mother's petition to appoint stepdad guardian of the children, then bio dad will have to petition the court for custody.

Stepdad cannot adopt the children without notifying bio dad, and without the court terminating bio dad's rights.

The court will consider the children's best interests (among other things) in making a decision.

Answered on 7/14/08, 9:09 pm

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