The Death of a Custodial Parent


In the light of the Elian Gonzales custody battle it seems only fitting that some of the issues in that custodial battle might be hitting close to home of some of you. Since the international issues are being covered by every legal show, those issues are going to be skipped for now. Instead, the issues surrounding the custody merit discussion.

For those of you that have been living under a rock and have not been bombarded by the media coverage of Elian, here's it in a nutshell. For a more in-depth summary go to www.cnn.com or www.msnbc.com. Elian and his mother and step-father were on a raft from Cuba to the US. The mother died before the raft reached the US. Elian was a survivor and custody was given to relatives in the US. Currently he is staying in the US with those relatives until the court system can decide his fate: whether to be returned to Cuba to his biological father or to remain in the US with his other relatives.

Assuming that Elian was not a Cuban refugee but rather an American citizen, he in most courts would be returned to the father. Unless the courts can be shown cause why the child should not be delivered to that parent. The courts still uphold the "best interest standard" and can determine should the child be returned to the other parent upon the death of the custodial parent. Such cause would be where the other parent is abusive or caused the death of the other parent, or the other parent's refusal to tale the child. The court can listen to the wishes of the deceased custodial parent- if they are known. However, this is only one portion of the whole picture that the court has to look at.

Many parents are under the impression that their will governs the placement of the child when they wish that Susie and Tommy will go with Grandma and Grandpa. However, that will only show what that parent wishes and is not always binding.

For some more information on this subject, see http://www.childrens-rights.org/ for how to protect a child's rights or consult an attorney or other legal professional for information on how this applies to your situation.

The copyright of the article The Death of a Custodial Parent in Divorced Parents is owned by Annelies Mouring. Permission to republish The Death of a Custodial Parent in print or online must be granted by the author in writing.

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