Skip to main content

Who gets automatic custody of a child when the custodial parent dies? How do I get my daughter?

Orlando, FL |

My daughter lives with her mom in another county. There was never a custody thing. We were never married. I am on the birth cert. The mother and I had an arguement a few months ago. We have not spoken since. I have been trying to get ahold of her for the past two months...I found out she passed away about a month ago. Nodbody told me. My duaghter I guess is now with her grandparents. They refuse to talk to me or let me see hr. I am her legal father! I should have automatic custody. I went there with the police department to get her and the police told me that it was a civil issue and i needed to file for custody. They have no right to keep my daughter. Why should i have to file to see her? I cant afford a lawyer and i am so worried. i need to make sure she is ok. Please help

I am on chil support with d.o.r....I pay child support through income deduction. Paternity was established years ago. I have been paying every week and the mom has passed away. They took out again friday.

Attorney Answers 4


  1. The police are correct that this is a "civil issue," but having your name on the birth certificate does not create custody rights. There is no such thing as "automatic custody." Nothing short of a full case review and representation by an experienced family law practitioner will meet your needs, and you will want to access that legal assistance without delay. Be aware, however, that the jurisdiction of your local court does not extend to a child now in another country, and your court will be very concerned about your non-involvement in the life of the child up to this point.

    Best wishes for an outcome you can accept, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.


  2. You need to file a civil action to establish yourself legally as the biological father. Being on the birth certificate creates a presumption that you are the biological father, but a judge still needs to establish your rights. You should consult with and retain an attorney to assist you.

    Should you wish to discuss this matter further, my office offers free initial telephone consultations. During the consultation, we can discuss the particulars of your situation in depth, as well as explore your potential rights and options. If you would like to coordinate a free initial telephone consultation, please contact my office at 407-971-6140 or 352-324-2444 to schedule same.

    Please note that THESE COMMENTS ARE NOT INTENDED AS LEGAL ADVICE and are for informational purposes only. This response is not intended to create any attorney-client relationship and is only based on the limited facts given. The response might change should additional facts be learned and should not be relied on as legal advice. It is recommended that you consult with an attorney who can properly assess the situation, as well as all pertinent facts, prior to taking any action based on the foregoing statements.

    Joanna Mitchell
    Mitchell & Associates, P.A.
    614 E. Hwy 50, Suite 327
    Clermont, FL 34711-3164
    PH: (352) 324-2444
    FX: (352) 324-2229
    Email: jmitchell@mitchell-pa.com
    Web: www.mitchell-pa.com

    Please note that THESE COMMENTS ARE NOT INTENDED AS LEGAL ADVICE and are for informational purposes only. This response is not intended to create any attorney-client relationship and is only based on the limited facts given. The response might change should additional facts be learned and should not be relied on as legal advice. It is recommended that you consult with an attorney who can properly assess the situation, as well as all pertinent facts, prior to taking any action based on the foregoing statements.


  3. As the other attorneys have indicated until, and unless you file a Petition to Determine Paternity and Related Rights you have no parental rights to or with your daughter. However, your name listed on her birth certificate would allow the grandparents to seek child support from you through the Department of Revenue without first having to obtain a DNA test.

    Sincerely,

    Daniel Bachert, Esq.
    The Bachert Law Firm, P.A.
    330 Clematis Street, Suite 222
    West Palm Beach, Florida 33401
    (561) 653-3951
    Palm-Beach-Divorces.com

    Please be aware and advised that this public forum is designed to provide only general information, to give you a basis of legal knowledge. This public forum does not give you attorney-client privilege. You and I have not entered into an attorney-client relationship. I am not responsible for your legal rights and this answer is based solely on the information you have provided in your question and as always, I would advise that you arrange for an in person consultation with an attorney from my firm or another Family Law attorney familiar with Florida Family Law who can analyze the specific facts and circumstances of your case more closely to better advise you.


  4. The presumption is that the child should be with you unless they can prove it would be detrimental to the child (very difficult to prove). You should not be paying child support - especially to them. They may be trying to establish a Guardianship of the child in probate court as the mom may have listed them in a will to be her guardians. You need to act now. Give us a call for a free consultation.

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics