Family Challenges to Wills Designating Child Custody

Family and adoption laws are often complicated in the United States. If there is no legal action taken for children to be adopted by a stepfather or stepmother, these cases may become even more difficult.

However, when a will or last testament has been drafted with a certain person in mind, it is then up to a legal representative to prove that it was created with a deceased person of sound mind before he or she died. Typically, this is the most important component in a challenge and enforcing the actions of the terms contained within the will or other legal document.

If the parent left after the biological parents have did is a stepfather or stepmother, he or she may have a greater weight in custody than extended family. This is usually due to his or her actions as acting mother or father while the biological relative was alive and the children were living with him or her. It is imperative that a family lawyer is hired to assist with these matters, as the courts may need to be petitioned for the rights of the parents to be transferred to the stepparent legally. This may take time, but this would resolve any claims extended family members have for the children or conclude a challenge to a will if one was left behind after the mother or father died.

Transfer of Parental Rights

When either of the father or mother is still alive and has not signed over parental rights to another party, custody usually is transferred to this parent instead of the child or children remaining with another person or relative. Generally, these situations are for stepparents, grandparents and other extended family members. However, when both biological mother and father have died, there are other opportunities available. The ability to retain children after the biological mother or father are deceased usually depends on the involvement of the stepparent. The more he or she is available and watches the children, the greater possibility he or she has in keeping them and being given the rights as a parent.

In most states, the rights of a noncustodial parent take precedence when the biological parent dies. However, if there are no other biological parents available, the spouse that was married to the mother or father usually has temporary guardianship until legal matters are resolved. The situation generally hinges on whether the stepparent petitions for custody through the courts after the death has occurred. When the youth lives with this person, it is possible to ensure the rights are transferred. The more contact and availability the individual has for the young persons, the greater the chances are that he or she may be awarded parental rights.

Challenges to Custody

Most challenges for custody of children are with biological parents that are still living but did not have primary custody before the mother or father died. However, if neither of these persons are alive, challenges may be made with aunts, uncles and grandparents with greater strength. These complications may affect the ability for a stepparent to keep the child, but the issue usually goes to family court. The more evidence that extended family have that the affected youth’s interests are better supported elsewhere, the less likely the stepfather or stepmother may have in primary or complete custody. Many of these issues stem from strained relationships with extended family members of the biological parents.

Challenges are weaker when the stepparent has gainful employment, has been raising the children for a longer period of time, has the time to attend to the child’s needs and similar circumstances. Because the family court ensures the bests interests of the child are taken into account, the more the stepparent is able to prove he or she is the right fit, the less likely extended family may be able to obtain custody once the biological parents have died. However, it is still important to hire a family lawyer to assist with the case. This is even more important if the extended members of the family attempt to sabotage the case through criminal actions.

The Family Lawyer

In family courts, custody arrangements and transfer of parental rights may be easily understood, or it could take time to resolve the matter. The judge usually examines all evidence and then will make a final order for these matters. It is beneficial to petition for a transfer of rights before a challenge occurs, but the concern could be concluded with a positive outcome when a lawyer is hired.

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