Article on Can a Dead Hand from the Grave Protect the Kids from Darling Daddy or Mommy Dearest?

Lynne Marie Kohm recently published an Article entitled, Can a Dead Hand from the Grave Protect the Kids from Darling Daddy or Mommy Dearest?, 31 Quinnipiac Prob. L.J. 48 (2017). Provided below is an abstract of the Article:

The brilliant nineteenth century English Romantic poet, Percy Bysshe Shelley, was also an absent father of two, an occasional husband, an impetuous adulterer, and an avowed atheist. In the midst of his expulsion from Oxford University at age nineteen, he eloped with sixteen-year-old Harriet Westbrooke, who was already pregnant with his first child. Less than three years later, Shelley left Harriet, pregnant and with a two-year-old, for an openly scandalous love affair with Mary Wollstonecraft Godwin. Two years later, Harriet, again pregnant, drowned herself, leaving two young children behind, and Shelley free to elope (again) with Godwin. When Shelley decided to raise the children himself, Harriet’s parents refused to release them into Shelley’s custody. Shelley went to court to fight for custody of his children on the grounds of natural parental rights. This article analyzes whether parents in similar circumstances should win such battles.

The natural connection between parent and child matters both in life and in death. This article considers the legal conflicts that may arise when a primary caregiver parent dies. Shelley left his children in their mother’s care while he took another lover, but does it necessarily follow that he would be a terrible custodial parent? Imperfect parents are not uncommon. Consider whether a manipulative, self-involved, child-abusing, alcoholic mother who beat and badgered her children, tied them to their beds, and whose abuse of the children became cinematic legend, should be able to maintain custody of her children when the children’s other parent dies? Who should take guardianship of a child who is subject to neglect and attempted rape while in the care of foster homes? Alternatively, shall a child, removed from “an insatiable womaniz[ing]” father by the woman she knows as mother, be returned to her father when her mother is killed in a house fire? Can a parent take any testamentary steps to protect his or her children, even from the grave? Children who survive the death of their primary caregiving parent are generally, by operation of law, transferred to the care and custody of their surviving parent. However, should that surviving parent need to be “fit” for parenting? Should the court be required to protect the best interests of the children? Alternatively, can the deceased parent ever leave guardianship directions that are afforded weight against natural parental rights? Can a court determining custody of children in the death of the primary caregiving parent be allowed to entertain a rebuttal of the natural parent presumption if diverging wishes of the decedent parent are left by will? This article explores these questions and offers potential answers for practitioners working to protect clients’ children in the event of the demise of the primary caregiving parent, particularly when the surviving natural parent has exhibited conduct that does not seem to be in the best interests of the child.

Part I outlines the law, juxtaposing probate rules and family law rules surrounding natural parents and their children, and examines how states have handled or may handle the conflict of laws. Part II offers some suggestions to practitioners regarding how to best protect the rights of parents and the best interests of the children.

Shall a child in the decedent’s custody be left to the care and custody of a surviving parent despite the parent-testator’s wishes to the contrary? The answer, as always, lies in the law as applied to the facts of each case. So, what happened to the children of Harriet Westbrooke and Percy Shelley? “Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.” The question remains whether the outcome would have been more easily reached if their mother had left a will.