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

By Laura Payet

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

By Laura Payet

If you are a father whose parental rights have not been terminated by a prior court proceeding, you still have rights regardless of whether the deceased parent's will gives the child's grandparents guardianship—even if you have been the noncustodial parent. In any issue arises involving care and custody, a court's primary focus is on making a ruling that is in the child's best interest. As a general rule, the law presumes that having the biological parents care for them is the most appropriate.

Father with his arm around his son sitting on the ground in a park

Parental Rights

The law has long recognized that biological parents have numerous rights when it comes to their children. These include the right to care, custody and companionship, and the right to make important decisions about their health, education, and welfare. For example, parents have the right to make decisions regarding:

  • Schooling
  • Religious activity or education
  • Childcare
  • Medical treatment, including physical and mental healthcare
  • Place of residence

Custody and Termination of Rights

Note that custody is only one element of a parent's rights. If you and your ex-spouse divorce but share custody, you should automatically receive full custody after their death. But even if your ex-spouse had sole custody, you still retained parental rights, most likely including the right to visitation and participate in major life decisions, as well as the obligation to pay child support. These rights survive your ex's death, regardless of what her will says. Indeed, since the presumption that placing a child with the parent is in his best interest, courts prefer to give custody to the noncustodial parent following the other's death.

While a custody order by itself does not terminate parental rights, the court can do so in a separate proceeding if it finds that the parent is unfit and that severing the legal relationship between them is in the child's best interest. If an existing court order has extinguished your rights, then you have no right to challenge the grandparents' guardianship.

Also, although states vary in their laws and processes, it is possible for the grandparents to petition the court to override your rights and award them guardianship based on the existing relationship between them and the child, or on the grounds that you are unfit. Although the procedure for demonstrating unfitness depends on the state, generally the grandparents would have to prove severe abuse, neglect, or abandonment.

If you have not had an ongoing relationship with your child, and depending on the circumstances, the grandparents could prove abandonment unless the custodial parent's actions prevented you from maintaining one. Additionally, if the custodial parent and child lived with the grandparents, they may have a stronger argument for guardianship. As long as the court declines to cut off your parental rights, however, you may retain at least the right to visitation.

Unmarried Parents

If you and the deceased parent never married, your situation is more complicated. You do not have rights against the grandparents unless you have legally established paternity or have an existing court order regarding custody and support. If you have neither, then in order to obtain rights you must petition the court to establish paternity. The procedure for doing so varies by state.

As a parent, it is important for you to have an estate plan of your own to express your wishes about who will care for your child when you are gone, especially when there is no longer another parent in the picture.


This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.