Q: Can a grandmother get full custody of a child when the mom dies and biological father is alive and wants full custody?
Mother killed while child was 6wks old BEFORE paternity established BUT father petitioned paternity after mother’s death IMMEDIATELY in NOV (2021). Grandmother ran off with baby & was not in communication with alleged father UNTIL paternity established 2months ago (2022). Paternity has now been established and grandmother has temp custody, father has visitation every 2wks, and in court BOTH asked for full custody. Father’s nose is clean & never gave up rights. Now it is up to the judge as to who will get custody. Grandmother has also cutoff communication with deceased mother’s father’s side of the family. Will the dad get custody?
A: You don’t say how old the child is; however, the grandmother will have to overcome the natural parent presumption which says that the biological parents are the natural guardians of their children. The presumption may be overcome if the father has 1. consented to a third party having custody through a court order, 2. abandoned or deserted the child, 3. is unfit, or 4. is engaged in activity which is imminently detrimental or dangerous to the child and is not likely to stop in the foreseeable future. If none of these are proven, the child should be placed with the father. If one is proven, the parties will be on a more equal footing and the court will have to do an Albright analysis to determine the more appropriate custodian for the child.
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