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

Asked over 1 year ago - 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

Additional information

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. Joanna Marie Mitchell


    Contributor Level 15


    Lawyer agrees

    Answered . 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... more
  2. Daniel A. Bachert

    Contributor Level 14


    Lawyer agrees

    Answered . 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.


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

    Please be aware and advised that this public forum is designed to provide only general information, to give you a... more
  3. John P Wallace

    Contributor Level 11

    Answered . 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.

    Paula Brown Sinclair
    Paula Brown Sinclair, Family Law Attorney - Twin Falls, ID
    Posted over 1 year ago.

    I think, Mr. Wallace, that you will want to review the TOS and Community Guidelines on client solicitation, which is forbidden on the Avvo Q&A.

    John P Wallace
    John P Wallace, Family Law Attorney - Orlando, FL
    Posted over 1 year ago.

    I see a Twin Falls Idaho but not one in Florida. So I am not sure why you would complain about me doing what many attorneys in here do which I do not believe is unethical, while you are giving legal advice on a non-Idaho issue (an issue that does not fall within your alleged area btw)

    Paula Brown Sinclair
    Paula Brown Sinclair, Family Law Attorney - Twin Falls, ID
    Posted over 1 year ago.

    Your negative comments are not well-taken, Mr. Wallace, and I take offense at your suggestion that I have done something unethical. If you had checked my profile, you would see that I have practiced family law for over 32 years. My comments in that regard were not state-specific. Why Avvo does not identify me as a family law practitioner is a mystery. Further, I have confirmed with Avvo general counsel that my comments on family law matters posted from other states is not only welcome, but expected. My admonition to you was limited to your use of the Q&A for client solicitation. During my experience with Avvo, which appears much longer than yours, I have learned that Avvo can seem quite harsh in their enforcement of that restriction. Finally, my comments responding to questions like this should be taken as information rather than advice, as set forth in my standard disclaimer

  4. Paula Brown Sinclair

    Contributor Level 20


    Lawyer agrees

    Answered . 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.

Related Topics

Father's rights in child custody

Father's rights refers to the parental rights of the father, primarily child custody and visitation rights. Fathers sometimes also need to establish paternity.

Child Custody

Child custody involves decisions about who will be responsible for a child, including parental rights, for both married and unmarried parents, and adoptions.

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