Can a Dead Hand from the Grave Protect the Kids from Darling Daddy or Mommie Dearest?

Abstract

The natural connection between parent and child matters both in life and in death. This article considers the legal conflicts that may arise when a primary caregiver parent dies. Consider whether a manipulative, self-involved, child-abusing, alcoholic mother who beat and badgered her children, tied them to their beds, and whose abuse of the children became cinematic legend, should be able to maintain custody of her children when the children’s other parent dies? Can a parent take any testamentary steps to protect his or her children, even from the grave? Children who survive the death of their primary caregiving parent are generally, by operation of law, transferred to the care and custody of their surviving parent. However, should that surviving parent need to be “fit” for parenting? Should the court be required to protect the best interests of the children? Alternatively, can the deceased parent ever leave guardianship directions that are afforded weight against natural parental rights? Can a court determining custody of children in the death of the primary caregiving parent be allowed to entertain a rebuttal of the natural parent presumption if diverging wishes of the decedent parent are left by will? This article explores these questions and offers potential answers for practitioners working to protect clients’ children in the event of the demise of the primary caregiving parent, particularly when the surviving natural parent has exhibited conduct that does not seem to be in the best interests of the child.

Part I outlines the law, juxtaposing probate rules and family law rules surrounding natural parents and their children, and examines how states have handled or may handle the conflict of laws. Part II offers some suggestions to practitioners regarding how to best protect the rights of parents and the best interests of the children.

Shall a child in the decedent’s custody be left to the care and custody of a surviving parent despite the parent-testator’s wishes to the contrary? The answer, as always, lies in the law as applied to the facts of each case, but this article offers some solutions to protect the best interests of children in these challenging parental situations.

Keywords: parent, child, guardianship, wills, custody, best interests

JEL Classification: I00,I10, I19, K00, K10, K19, K30, K39, K40, K49