Wills and Child Custody

About once a year a mother asks me about a Will so that the father cannot get custody of the child after her death. Emotions lie close to the surface and my general response does not help. The general answer being a Will cannot do anything about child custody. Indiana law says that a natural parent has a right to custody of his child upon the death of the custodial parent.

The general rule, of course, has an exception. The non-custodial parent does not get custody automatically upon the death of the custodial parent if:

(1) the surviving parent, at the time of the custodial parent's death, had required supervision during parenting time privileges granted under a dissolution of marriage decree involving the minor; or(2) the surviving parent's parenting time privileges with the minor had been suspended at the time of the death of the custodial parent;

That is from IC 29-3-3-6. Even then the dead parent's Will does not control in this situation. Someone must file a petition for temporary guardian of the child. Only after a hearing before a court will there be a decision on who has custody of the child - the parent or the guardian.

The custodial parent needs a Will that nominates a person of their choice to be guardian of the child. Such a Will does not satisfy the urge to cut out the non-custodial parent but it does better than that by giving the custodial parent the ability to name the guardian of their child.