In most divorces, couples share joint custody of their children. However, there are cases in which one parent is absent, despite having legal rights. In some cases, it is a lack of effort or desire. In others, it is a matter of the absent parent being denied their rights. So what happens when one parent is absent and the other one dies or the absent parent wants to come back?
While the matter of why is obscure in an ongoing custody battle between a stepfather and father, the case does bring to light to some questions regarding custody after a parent has been absent. And it only further solidifies the importance of having the right plans in place, should something ever happen to the custodial parent.
Absentee Parents and Their Rights
While it is extremely important for both custodial and noncustodial parents to stay involved in the lives of their children, there are certain circumstances that may cause one parent to be absent for a period of time—serious illness, military service, domestic violence, or relocation are the most common examples.
In most cases, as long as this absence was short-lived, and the parent demonstrated an interest in maintaining visitation or custody, the absence does not have any effect on the original custody arrangement. This typically applies, even if the custodial parent has blocked any attempts to make contact with the child. However, when a parent outright abandons a child, the circumstances can become very different.
What Constitutes Abandonment?
Abandonment is a bit obscure when it comes to custody arrangements. Length of time is a major factor, but intent behind the absence is also considered. And, quite often, it is within that intent that the judge determines what may be in the best interest of the child. Recurrent abandonment — even if they are for short time period s— may also be considered a factor when determining child custody.
Even if a stepparent has not legally adopted a child, visitation rights may be awarded. Though atypical, it may be considered in the best interest of the child, particularly if the non-custodial parent was not involved in the child’s life. However, there are very few cases in which a custodial parent has died, the non-custodial parent has been absent, and no legal adoption has been filed (or a custody arrangement has not been revised). This makes the current case a highly complex one, with many factors to consider.
Preparing for the Unexpected
Anytime a child has two parents in two separate households, there must be considerations as to what will happen if the custodial parent dies. The plan may need to be revised, should one parent become absent for a long period of time. It may also need to be modified if step-parent becomes a part of the picture. Regardless of how life changes, the “what-if” must be considered when there are children.
If you are going through a divorce or have custody questions, the skilled DuPage County family law attorneys at Mevorah & Giglio Law Offices can help. With more than 200 years of combined experience, we can effectively and, when necessary, aggressively represent your case. Call us at 630-932-9100 today for your free initial consultation.
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