St. Louis Probate Lawyers
Our firm combines the knowledge, experience and attention to detail necessary to provide clients with effective representation and solutions for disputes involving all probate matters, including: trusts, estates, fiduciary responsibilities and related matters including contested guardianships and conservatorships. Our St. Louis probate lawyers have over 30 years of combined experience in Missouri probate matters and have extensive experience in St. Louis Probate Court, St. Louis County Probate Court and St. Charles County Probate Court.
We combine our advocacy skills and experience at trial with our estate planning and administration background to provide clients with representation covering the multitude of variables and unique family dynamics that arise throughout any litigation proceeding. Our role is to help the client stay focused on the end goal of litigation and the economics of dispute resolution, often during a time when emotions may run high and sensitive family history may rise to the surface.
By clearly outlining the risks and benefits of each step and working closely with you to keep agreed-upon priorities in sight, we can remain focused on achieving your desired result.
We frequently handle cases in each of the following areas of trust, estate and fiduciary disputes:
- Trust Administration
- Probate Administration
- Guardian & Conservator Estates for Adults
- Trustee & Beneficiary Disputes
- Breach of Fiduciary Claims
- Guardian & Conservator Estates for Minors
- Trustee Accountings
- Probate Claims & Disputes
If a Mother Dies, Does the Father Automatically Get Custody?
If the father is a full custodial parent, he will take over sole custody, or if he had joint custody with the mother, then the court is likely to award custody to the father. However, if the father did not have any custodial rights prior to the mother’s death, there will be a more in-depth calculus of who may receive custody of the children.
This difficult question often arises when a mother, who had full custody of her minor child or children, dies unexpectedly. Generally, courts prefer to grant custody to the surviving biological parent, if that is a viable option. However, there are a myriad of other factors that make the answer to this question more complex than simply finding the father and giving him custody.
Some common factors that may come up in this circumstance are: Has paternity been established? Does the biological father want custody? Can he even be found? What are the factors for why he didn’t have some form of custody previously? Is he a suitable parent? If not the father, then who should get custody?
The first thing that a father must do to petition for custody is establish paternity. Generally, there are two primary ways to establish paternity; presumption of paternity or acknowledgement of paternity. In Missouri, there is what is known as a presumption of paternity in which the law outlines a variety of scenarios where a man may be presumed to be the father of a child.
Presumption of Paternity
The most common scenario establishing the presumption of paternity is that the mother and father were at one point married and the father’s name is listed on the child’s birth certificate. Another common presumption of paternity may be found if the child was born during a marriage or within 300 days from termination of that marriage by divorce annulment or death. Yet another presumption of paternity can commonly be established through a DNA paternity test. There are many other outlier scenarios in which a father may establish the presumption of paternity, so it is always wise to consult with a paternity lawyer before starting your custody proceedings. For a full list of possible scenarios where paternity is legally presumed, see RSMo 210.822.
On the flip side, a rebuttable presumption of paternity may be overcome by a showing of “clear and convincing evidence” to the contrary. The most common evidence rebutting presumption of paternity would be a DNA paternity test establishing nonpaternity or showing a high probability that someone else was the father.
Acknowledgement of Paternity
If there is no presumption of paternity, for instance a child born out of wedlock whose father’s name is not on the birth certificate, an acknowledgement of paternity may be accomplished through the filing of a signed acknowledgment of paternity form. The law and rules that set forth the procedure for filing an acknowledgement of paternity form may be found in RSMo 210.823 and RSMo 193.215.
However, the statute requires both parents’ signatures, so if a father did not already filed this acknowledgement form at the time of the mother’s death, then it will likely be impossible to file afterward, and the father will have to try to establish paternity another way. If you are considering such a filing, it would be wise to establish paternity as soon as possible so that, in the event of an untimely death of one of the parents, you will have the presumed first right to custody.
Consult with Schmidt Basch.
Consulting with a paternity attorney is also advantageous because they will be able to use their experience to help navigate the full litany of requirements set forth in the paternity statutes.
Contact Schmidt Basch, LLC, at (314) 721-9200 for legal support in this matter.
Contact Schmidt Basch, LLC
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If you need help with Trust, Probate and Fiduciary Litigation, having the right representation is important.
Contact Schmidt Basch, LLC today, and our team will promptly reach out to schedule your consultation.