What happens to child custody if something happens to me?

Posted on Jul 19, 2023 by Katie Carter

Breaking up with your child’s father makes a difference to your life in a million different ways.  Ultimately, your estate plan is one of those ways that – though it may not immediately be apparent to you, if you’re young-ish and in relatively good health – can sneak up on you later.  Regardless of your age and health, though, you’re wise to consider what would happen, both to your children and your finances, in the event you die or are incapacitated.

Financially speaking, you’re smart to consult with a wills, estates, and trusts lawyer.  (Full disclosure: I am NOT a wills, estates, and trusts lawyer.)  Your estate planning lawyer can help you make sure that all your beneficiary designations are changed appropriately and everything is in order so that your wishes will be fulfilled.

As far as custody is considered, though, that’s a family law issue.

I have moms ask me all the time about ‘guardianship’ of their kids in the event that something happens to them.  It’s a fair question, but the answer is one that I find my clients don’t usually want to hear.

The law on this is – probably unfortunately, really – pretty well settled.  If something happens to one of the child’s biological parents, the child’s other parent will get custody.

What if I have guardianship paperwork drawn up, and I list someone else as the guardian for my child in the event that I die?

Parents do that a lot, right?  In fact, I have a document like that in place.  In the event that my husband and I both die, we’ve asked my sister and her husband to take custody of my children.  We’ve lined up all of our assets to help enable them to pay for what our children might need and to make the transition as easy as possible on everyone involved.  (A farce, right?  It’d be a disaster.  But, obviously, this is a worst case scenario situation.)

It doesn’t work like that, though, in a case where the parties are separated and one parent is trying to keep the child’s other parent from having custody.  Whether you’d prefer that your new husband, your mom, your sister, or someone else get custody, if the child’s other parent is still living, he would have custody.

You might be able to designate a guardian in the event that something happened to both of you, but it’s a little tricky, too.  (What if you both have dueling guardianship designations?)

Custody and visitation is most easily established between parents; any third parties petitioning for custody and/or visitation would need to meet the much harder ‘actual harm’ standard, as opposed to the ‘best interests of the child’ standard that exists between custodial parents.  Your mom, your sister, and/or your new husband would be third parties in the eyes of the law.  They could petition for parenting time – and they might get some, depending on the circumstances – but it’s not a guarantee, no matter what paperwork you’ve had drawn up.

The thing about custody, too, is that it’s not really an enforceable thing to establish preemptively.  Custody and visitation is modifiable based on a material change in circumstances (and a parent’s death would certainly be a material change in circumstances).  The reason it works this way is that ‘best interests of the child’ is the standard, and that’s not something that’s fixed at a particular point in time.  ‘Best interests’ changes as a child (or children) grow and mature, and as things happen in their lives that impact their growth and development.  You can’t stipulate NOW what’ll happen at some unforeseen time in the future (if at all).  You certainly can’t do it one-sided, either; the child’s father has the right to weigh in here, too.

What if my child’s father is a deadbeat, is abusive, hasn’t been involved, or is otherwise unfit to have custody and visitation?

I know it doesn’t make you feel better, but if dad is truly a bad guy, or has been uninvolved up until this point, it would be an issue for the court to decide.  That could fit into the whole ‘actual harm’ thing, depending on the facts, circumstances, and evidence you (or your designated future guardian or other interested party petitioning for custody and visitation) bring to court.

It’s impossible to say now what might happen.  There are too many unknowns.  But, as far as today is concerned, the judge won’t issue an order that, in the event that you die earlier than expected, your ex won’t get custody.  That’s not a thing.  So, it’d have to be something that would be determined by the court if it actually happened.  And, of course, how he’s behaved, how involved he’s been, his mental health record, his criminal record, and other evidence would be relevant at that time.

I know.  You want certainty.  But there’s not that many options for certainty, especially when we’re dealing with a situation that doesn’t exist (you’re not dead now, if you’re reading this) and may never exist at all.

No, this isn’t okay.  I desperately need to know that, if I die or am incapacitated, my child’s father will not have custody.

I get it.  The unknown is scary.  And your child’s father is, for one reason or another, not a desirable custodian for your child.  So, what now?

Well, really, you only have two options: (1) stepparent adoption, or (2) termination of parental rights.

Stepparent Adoption

A stepparent adoption is probably the more likely of the two.  If you’re remarried, your new husband could – potentially – adopt the child himself.

Your child’s father would have to agree; if you litigate it, you almost certainly don’t stand a chance.  The court isn’t just going to take custody from a dad because you want it to or because you have a new husband who’d be willing to stand-in.  If he’s paying child support, if he’s exercising parenting time (however inconsistently), he’s almost certainly not going to lose custody.

The catch?  If your new husband adopts your child, your child’s father will no longer be on the hook for child support, medical expenses, or any other related costs.  Your new husband would take on that responsibility, and would legally become the parent of your child.

Termination of Parental Rights

In very, very extreme cases, parental rights can be terminated – though this is rare.  In fact, termination of parental rights is not something that we do.  It usually stems from very severe abuse and neglect, and often removal of the child(ren) from the parents’ home and subsequent foster care placement.

It’s not going to happen even if he’s a total deadbeat, because to remove him as a parent would be to remove his responsibility to pay child support.  The state doesn’t like that, because if parents aren’t on the hook for child support – the state is.

I don’t tell you about this because I think it’s an option for you, but to illustrate the extreme that it would have to go to in order for this to work.  (Furthermore, if the child has one good parent, I think termination of parental rights of the other is even less likely!)

There’s no perfect scenario in which you get to dictate that someone other than your child’s father has ‘guardianship’ if something happens to you; at least, not without your child’s father’s agreement.  It’s a tricky place to be in, but it’s also important that you know what the law is and how it would work if the worst actually came to pass.

But, take heart: it almost certainly won’t.  Anything is possible, but it’s far more likely that you’ll live long enough to dance at their weddings.

It’s good to ask these questions.  And I am so sorry if I’ve given you advice that you don’t particular want to hear.  (Believe me, I do NOT enjoy doing it!)

For more information, give us a call at 757-425-5200, request a free copy of our custody book for Virginia moms, or visit our website at hoflaw.com.