Custody of minor child in the event of parents death


My husband’s ex wife is in the process of getting her will drawn up. She is placing in her will that her minor child (my husband’s daughter) be placed in the custody of her new husband (the child’s step-father)in the event of her death. Can she do that and will it matter what she requested in the event of her death? She is the custodial parent of the child and my husband has visitation. I was under the impression that unless my husband was deemed “unfit” the child would be placed in his custody in the event of her mother’s death.


I believe you’re right. Biological parents have first rights unless there is a compelling reason to deviate.


The biological parent retains custody in the event of the death of the other parent unless that parent has had the rights removed or the stepparent has filed a valid claim for custody prior to the death of the biological parent.
Regardless of the wishes of a will, with a surviving biological parent, especially one involved with the child, the custody is not in question. Any person of interest in the child can file for legal custody but with a biological parent having custody already, it is rare that the custody is changed.


The father would assume custody in the event of the mother’s death so long as his parental rights are not terminated regardless of what is in the will.


If the “child’s” best interest are paramount in making decisions for the child. Consider this:

I am not trying to offend anyone, but I am in a similar situation. I am the Custodial Parent “legal and physical”. My child’s bio dad or NCP has not been in my daughters life for five years and now has wanted visitation.

IF something were to happen to me. If the child had grown accustomed to their surroundings and their school and their friends and lived quite well in their current environment. Would this not be detrimental to the child to uproot them and put them in a environment that they are unfamiliar with and starting a new school and having to create new friends.

I am a firm believer that children need stability, in order to feel that they are aware of what is coming next and they can prepare themselves and focus on their schooling and their future better with this stability.

“If” the child comes first… “why” is it a legal issue to move them to the NCP and create a emotional situation for the child on top of their parents passing away. This does not seem to “me”. to be a consideration of the best interest of the child.

Put yourself in the childs shoes…“Mother passes away”. Child already emotional, and confused… then on top of that you are going to move the child to a new environment, and put them in a new school.

Get ready for additional counseling and a lot of nightmares and late emotional nights. This does not seem to be “fair” to the child, just so someone can assert rights.

If the parents “really” love and care for their child, then every decision that is made would be by first putting yourself in the child’s shoes and understanding the child’s position and feelings.

Children are not pawns or even possesions, they are living breathing, thought provoking, emotional intelligent individuals.

Please consider your child’s feelings before attempting such a move. Or at least if you are going to do this, give the child some time to cope with the loss first and take things slow and cause as little pain as possible to the child. “If the mom is gone.” Why would it matter how slow you take it, put the child first. “in everything you do”…

Like I said in the beginning, I do not want to sound like i dont understand, but I do. The laws are not child friendly, put the child first, get them couseling. This is not about who gets what, but about the child.


I understand the above posters concern but in the situation outlined in the original post, it is discussing a father who is involved with the child/children’s lives already. The biological parent that is involved with the child regardless of whether they have visitation or joint custody should be given primary custody in the event of the other parents death. After all, if both parents are involved in their lives as much as possible then that parent is the logical choice of who they would turn to.
And being realistic, while the surviving parent may no longer be involved with the custodial parent, there are still going to be feelings of loss there too and the need to help the child through their grief.

That being said, in your situation, with the father having had no contact with the children in many years, it SHOULD be a different resolution. In that situation, as I said previously, another person having an interest in the child’s well being can file for custody and depending on the determination of the surviving parent, could possibly gain custody. This could be a step parent, another family member or close family friend who has been involved in their care up until that point.