Legal Question in Family Law in Virginia

Custody of Child with one deceased parent

In WA the matter is statutory. "The surviving parent" may designate a guardian by will. It will likely be statutory in your state as well.

If the other parent is a scoundrel, I have my client draft a separate affidavit, stating with as much specificity as possible how and why the other parent is rotten.

The will paragraph that addresses custody of minor children then refers to the affidavit, stating that X is nominated as guardian even though the other parent remains, and if the parent attempts to take custody of the child, then the personal representative is to present the affidavit to the court.

This does several things: First, the court will always assume for itself the place of watching out for the interests of a child. If the surviving parent would be harmful to the child, the court has authority to override. The case would then become like a third-party custody action in which the non-parent alleges that the surviving parent is either unfit or thedevelopment of the child would be harmedby placement with an otherwise fit parent.

Thus, hopefully (I haven't seen one in practice yet), the affidavit has invited greater scrutiny and has, if necessary, encouraged your designee to pursue a third-party custody action.

Finally, if you are afraid that the other side will cut off your sister's side from regular contact with the child, that is one of the few cases where I believe the side of the deceased parent should be able to impose theirvisitation request upon an unwilling surviving parent. (In WA it is statutory.)

Natural Parental Bond

The inquiry indicated that it involved Iowa and Virginia. I am only licensed to practice in Virginia, not Iowa. Without knowing more, I can't say which state's law would apply to this case. However, assuming that Virginia law applies, it is my strong belief that a custodial parent who dies is not able to decide who other than the surviving natural parent is entitled to have custody of the minor child. Wills normally dispose of property and assets and some courts might find it offensive that a child be considered to be the property of either parent.

In Virginia, different tests apply to custody fights between natural parents and custody battles between a parent and a non-parent. In its 1985 or so decision in BAILES v. SOURS, the Virginia Supreme Court said that, as between a natural parent and a non-parent, the natural parent always wins unless the non-parent can show 1of the following 5 circumstances: parental unfitness, abandonment, relinquishment, divestiture, or "special facts and circumstances." Without knowing more facts, it is my opinion that, if the matter arose under Virginia law, the surviving natural parent COULD contest a provision in a will giving custody or control of his child by a deceased ex-spouse to a third party.

Custody of child after death of divorced custodial parent

While the law may vary from state to state and I can only tell you with certainty what it is in Tennessee where I practice and what the general rule is in MOST states, but perhaps not yours.In general the answer is clearly that a non-custodial parent who seeks custody of a child after the death of the custodial parent will be strongly considered and is likely to get custody unless there are very strong reasons for a court to decide otherwise.It really isn't enough for the custodial parent merely to express their desire regarding custody. In their will, they need to set out all of their reasons in considerable detail.... and even then the judge is not required to follow those wishes, but they usually are given considerable weight.You need to talk with an attorney there in your state who does a good deal of both family law AND estate planning/probate work.

Custody after death of one divorced parent

The ex-husband would get custody immediately and automatically uponthe mother's death. A custody decree in a divorce is an adjudicationthat one parent is better than another. It does not terminate parentalrights or decree that the non-custodial parent is unfit.