Legal Question in Family Law in Tennessee
Child Custody upon death of a parent
I am writing on behalf of my boyfriend. He was divorced in 1997 and has a 4 year old child. The wife (I believe) has sole custody, but the child is with the mother for 3 weeks then him for 2 weeks, alternately, until the child reaches school age. The ex-wife is dying of cancer will most likely come to pass within the next several months (before the end of the year).
What is my boyfriends rights? Will it be automatic tht he will assume sole custody of his child? Is it possible for the ex-wife's parents to take the child? What can my boyfriend do to ensure that he will have sole and complete custody of his child upon the death of his ex-wife? Can a letter be drawn up between them and signed stating that the child will become sole custody of the father and not be negotiated or transferrable to any other party, have the letter notorized, and this document be legal and uphold in court should the ex-wife's parents decide to try and take the child. The ex-wife and her family are very vindictive and are no stranger to causing trouble. What does he need to do?
1 Answer from Attorneys
Re: Child Custody upon death of a parent
He needs to check my website at http://www.jesbeard.com/53.htm
What happens to your minor children when you die?
If one parent dies or become incapacitated, usually the surviving parent will either keep custody of any children, or will get custody of the children if the parents are divorced or never married. But even this is not always the case.
But no matter what the custodial parent does or says or writes or puts in a Will, the court is not required to follow those wishes. Under Tennessee law as set out by the state legislature, the probate court or juvenile court (the matter could end up in either court depending on the circumstances) is supposed to decide child custody based on what is in the child's best interest. Now, under cases decided by the Tennessee Supreme Court and the Unites States Supreme Court, the court making the decision about custody should automatically award custody to the surviving biological parent, unless there is clear proof that placing the child with that parent will expose the child to a substantial risk of substantial harm.
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