How to Deal with Custody Issues When Mother is Deceased and Children have Two Different Biological Fathers

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“My sister died in February 2007. She was married to the father of her two youngest children when she died. She has one older child with a different man. The oldest child’s father has had little contact in his life even though his parents have. After her death both fathers signed a custody agreement for the three minor children to be raised by the maternal grandparents. The grandparents have kept them in the same school, taken care of them as they have recuperated from the car accident that took their mothers live and have created a stable life for these children. Now both fathers are asking for custody of their respective children. They both are single men who have allowed my parents to change their lifestyle and invest money with the long term objective of raising their grandchildren. One pays a little child support (175 a month) and my deceased sisters husband pays no child support. My grandparents also don’t want to see the siblings split apart. We are afraid that the courts will allow the respective fathers custody and the children, who have expressed a desire to live with their father, will move and then later regret their decision. Do we have any hope of retaining guardianship of these children? Any advice will be greatly appreciated.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

First, why on earth did the husband give up custody of the two youngest children? There seems to be more to this story than the facts presented here provide. Was he unable to care for them? Was he unable to make a sound decision in his grief? Was he pressured into giving custody of them to their grandparents?

Second, you use two terms interchangeably which are not legally interchangeable – do your parents have custody, or a guardianship? Which they have may have an impact on the final outcome – or, at least, an impact on the difficulty of the case.

But, most importantly, these children are expressing a desire to live with their parent. Why on earth would you or your parents want to keep them from their parent? Do you truly believe that they will be better off not with a parent who wants and love them – are these bad fathers? Abusive? – or, is this an effort to hang on to some shred – something – anything – of your deceased sister?

Your entire family has suffered a tragic loss. But above all, these children have lost their mother – they shouldn’t have to lose their father, too.

And, yes, absent something truly horrendous, the court is likely to give custody to their natural father.

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Author: House Attorney

A house attorney has answered this question.