Does a Father Have Rights Even if the Will Gives Guardianship to the Grandparents?

by Beverly Bird

    Fathers’ rights almost always trump grandparents’ rights, regardless of what the custodial parent’s will says. Although there are exceptions to the rule, a surviving parent has an automatic right to custody when the other parent dies. This right prevails unless he waives it, or the nominated guardians can present a compelling reason why his child should live with them instead.

    Parental Rights

    Parental rights and custody are two different things. A custody order does not terminate a father’s parental rights. Only a separate court proceeding can do that. For example, custodial parents might undertake such proceedings so stepparents can adopt their children. A juvenile court might also terminate a parent's rights if he is such a danger to his child that social services has removed her from his home. Termination of rights severs any legal connection between parent and child, whereas custody orders simply outline who the child lives with and who makes important decisions on her behalf. Unless the court terminated your parental rights in a separate legal proceeding after your divorce, all your parental rights remain intact after the death of your child’s mother, just as they would if she had lived.

    Custody Vs. Guardianship

    Custody and guardianship are also two separate issues. If you’re divorced, your decree includes the terms of your custody arrangement. If you and your ex modified custody after your divorce, a separate order usually memorializes your current arrangement. Either way, custody is a legal situation between you and your ex. If she has died, she is no longer a party to your custody order. You’re the only parent bound by it under these circumstances, so full custody automatically reverts to you. Therefore, in most cases, the only way your child’s grandparents can achieve guardianship over your child is if you -- as the parent with custody -- assign it to them. This is true even if your ex nominated them in her will.

    Unmarried Parents

    The usual custody rules don’t always apply if you were never married to your child’s mother. If you never legally acknowledged paternity, you have no parental rights. If you acknowledged paternity but never sought a custody order to establish visitation or parenting time with your child, custody can’t automatically revert to you when her mother dies. If you find yourself in this situation, confer with an attorney. In most states, you’ll have to first claim your parental rights through a legal proceeding to establish paternity. This is normally a simple procedure, but it becomes much more complex after the death of your child’s mother, because there’s no other living parent against whom you can bring such a lawsuit. After your paternity is established, you may then need to initiate a separate legal proceeding to override the terms of the mother’s will. The probate court would likely honor her wishes and name the guardians she selected in her will, unless you intervene.

    Overriding the Custody Presumption

    Your child’s grandparents may petition the court for guardianship, if you don’t voluntarily give it to them. Generally, they would have to prove you’re unfit to act as your child’s parent. They can also petition for custody on these same grounds. However, if you’ve had an active role in your child’s life, the odds of their success are minimal, at best. The law always presumes a child is better off with her parent than with any other adult. Natural parents have a “prima facie” right to custody before anyone else, even grandparents. This essentially means the court will take custody away from you only under extreme circumstances, such as if you’ve neglected or abused your child.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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