SPARC Forums

Dear Soc,

Hypothetical situation (just out of curiosity):

2 married persons divorce. They get shared physical custody on a week-to-week basis, but parent A gets sole legal custody.

At a later point in time, parent A dies.

1) Will parent B be given sole custody?

2) Would parent A's Will, designating custody to a 3rd party (like a new spouse), prevail over parent B's right to the child(ren)?

Thanks!

Kent!

>1) Will parent B be given sole custody?

If parent B has an established parent-child relationship, then yes. Otherwise, it depends on the quality of any established third party parent-child relationships, and whether the third party petitions for custody.

>
>2) Would parent A's Will, designating custody to a 3rd party
>(like a new spouse), prevail over parent B's right to the
>child(ren)?

An appointment of a guardian in a will carries some weight with the court, but it's mostly precatory (wishful). A parent who has an established relationship with the child has constitutional rights that would prevail over a delegation in a will, unless the delagation was made to a person who had an equally substantial relationship with the child and who actually wanted to fight over custody of the child.