There are exceptions to this presumption. Some typical factual situations wherein parental rights can be terminated are if one parent has a severe criminal record or a drug and alcohol problem. If a child is adamant about refusing to live with the surviving parent, then there may be a chance that the court will follow the wishes of the child. However, the court would have to be convinced that the child was not unduly influenced and that the child chose would be in his or her best interest.
6. Can the grandparents obtain custody of the children if a custodial parent should die?
It is not uncommon for nasty a custody battle to arise between the natural parent and the grandparents if the custodial parent should die. In the case of Watkins v. Nelson, 163 N.J. 235 (2000), the New Jersey Supreme Court held that disputes should be settled in favor of the natural parent unless the third party is a "psychological parent," a biological parent is unfit, or if exceptional circumstances exist. There is a presumption of custody in favor of the parent.
In the Watkins case, the father began seeking custody shortly after the mother died in a car accident twelve days father giving birth. The grandparents never alleged that the father was unfit parent, but only that they had become psychological parents to the child, who had been living with them since the mother's death. A crucial issue decided by the Supreme Court was the standard to be applied, the best interest of the child test versus the stand of termination of parental rights. The court ruled that upon the death of the custodial parent, in an action for guardianship of a child, a presumption exists tin favor of the surviving biological parent. The presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of exceptional circumstances, but not by the simple application of the best interest test.
7. What happens to alimony upon the death of the payor spouse?
In New Jersey it is clear that alimony terminates upon the death of the payor spouse, except that any arrearages that have accrued are fully enforceable. In summary, if a payor spouse has amassed a significant debt of unpaid alimony arrears, then this debt can be classified as a claim against the estate. The executor of the estate will then be obligated to pay off the alimony arrears from the assets of the estate. However, the executor will have no legal obligation to pay any more periodic payments of alimony to the surviving ex-spouse.
8. What happens to child support if the father should die?
It is not uncommon for many men to have two or even three families in their lifetime. Men are living longer and they are having two or three wives in their lifetimes. If a husband should die, quite typically the current family and children from a prior marriage(s) fiercely compete for their "share" of his estate. A common misconception is that the estate of a person under a support order child support order has no obligation to continue to pay child support. This is not always true. In New Jersey, the Supreme Court has held that a family has the power to enter a child support order for the minor child who survives their father's death. See, Grotskey v. Grotskey, 58 N.J. 354 (1971).