Legal Question in Family Law in Washington

Custody of child when both parents die, no will

My sister and her boyfriend had a child now 14 yrs old. Father not on birth certificate. While all 3 lived together, Sister died -1995, child remained with father and moved to Washington state. Father just died age 66yrs. The child would like to live with his grandparents in Minnesota. No Will exists for either parent. Uncertain what documents father had showing his legal custody. Need advice as soon as possible. Want to ensure proper procedures, limit complications, complete as much of legal work as possible in Minnesota. Child is currently staying with father's fiancee in WA until the end of school year. What actions are required for the temporary stay in June? What options & actions for grandparents custody of child after that point? Which state/county laws will apply?

Asked on 6/02/07, 12:14 am

4 Answers from Attorneys

Elizabeth Powell ELizabeth Powell PS Inc
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Re: Custody of child when both parents die, no will

Well, I disagree with Mr. Preble; you say both parents are now deceased. Therefore, there is no one to file a parentage action.

If there never was an adjudication of parentage, then there is no custody to establish.

If you want advice as soon as possible then please call. I agree with Mr. Preble that there are a LOT of issues presented here.

Third party custody is one way to go, adoption is another. Why are the grandparents leaving this child alone until the end of the school year? WHo is making his lunch and doing his laundry?

Hope this presents the other side. Elizabeth Powell

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Answered on 6/03/07, 3:59 pm
Gary Preble Preble Law Firm, P.S.
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Further Re: Custody of child when both parents die, no will

In re-reading your question, I had overlooked that the child was apparently born in MN (I think my prior answer also mistakenly referred to MI). In that case, paternity would probably be best handled in MN if you wished to accomplish that.

It would thus appear there would be no reason to be involved with the WA court system unless someone filed in WA a non-parent custody action within 6 months of the child leaving WA.

Assuming no WA custody challenge, your MN attorney could then advise you on MN requirements.

As a strategy tip, if you think there is a possibility of a custody dispute from someone in WA, in order to avoid the fiancee or anyone of the father's family in WA from wanting to push the custody issue (and learning about the 6-month rule before the 6 months run) it might be best for the child to do the talking to the fiancee on the point of wanting to stay in MN and go to school "this" year. That way it would not raise the hackles or suspicions of anyone in WA who might think the grandparents were trying to grab the child.

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Answered on 6/03/07, 9:21 pm
Elizabeth Powell ELizabeth Powell PS Inc
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And more: Custody of child when both parents die, no will

Mr. Preble is correct that the child can establish parentage through his next best friend. That way, if there are government benefits available to the child they can be had. SSI is about $750 a month to a minor based on a parent being deceased, and that would be a big help to this child.

Courts are going to be most concerned that the child be in the most familiar and healthy environment possible, placed with either family or close persons who truly have the child's best interests at heart.

Who that will wind up being is a matter for advocacy and perhaps an appointed guardian ad litem.

I don't see anybody here trying to "grab" the child, but somebody sure should be looking out for him.

Elizabeth Powell

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Answered on 6/03/07, 11:38 pm
Gary Preble Preble Law Firm, P.S.
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Re: Custody of child when both parents die, no will

I assume three things from your information: the grandparents with whom the child wishes to live are the maternal grandparents, neither the late father's fiancee nor the paternal family are fighting for custody, and you wish to have paternity legally established for the child's sake. If I am incorrect as to any of these assumptions, my answer would likely be different.

First, the old saying that "possession is nine points of the law" is generally a good rule of thumb. The first thing to do is to just move the child permanently to MI when school is over, and enroll the child in MI school in the fall. (The fact that you state "temporary stay in June" suggests there may be a custody dispute possibly on the horizon.) If there is a potential custody dispute, don't discuss permanency at the outset of the summer "visit" but enroll the child in school in the fall.

The second thing to do would therefore be to file a paternity case in WA in the county of residence of the mother and father. See Chapter 26.26 RCW at http://apps.leg.wa.gov/RCW/default.aspx?cite=26.26. RCW 26.26.520 suggests parentage can be determined in or in conjunction with the father's probate.

In order to avoid a custody battle in the state of WA, it might be best to wait until the child has resided in MI for 6 months because then its "home state" would be MI and the UCCJEA (Chapter 26.27 RCW and also enacted in MI as Chapter 518D) would require custody to be determined in MI. Thus, depending on your MI attorney's advice, enroll the child in school in the fall and wait out the six months to adjudicate paternity in WA. (Be careful on this point and seek advice of your MI attorney; but if done properly, there would likely not be a problem with adjudicating paternity in WA even after the 6 months has passed. One point to be aware of is that current WA law is different than it was at the child's birth. There may have been a legal presumption of paternity that attached under prior law.)

In conclusion, legal matters that might appear simple at first can often involve complications, such as the relationship between custody and adjudication of paternity. Regardless, I believe the best course would be to bring the child to MI after school is out. The wishes of the child and the absence of adjudication or presumption of paternity (if that is the case) would probably tip any custody dispute in your favor.

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Answered on 6/03/07, 12:09 am

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