Custody Of Mindy McCready’s Children And The Fallout When A Custodial Parent Dies

Leslie headshot outside_9797_10x13By Leslie O’Neal

News of the suicide of Mindy McCready on February 17, 2013 left the country music world in a state of shock.  It was no secret that as part of her personal struggles, McCready had been involved in an ongoing, contested custody dispute with the father of her 6 year old son, Zander.   McCready also had another child, a 10 month old son named Zayne, whose father had committed suicide just 5 short weeks before McCready took her own life.  The tragic turn of events for the country music singer begs the question: what will happen to her children?

If the case of custody over her children were taking place in Georgia, the answer would seemingly be simple with respect to her 6 year old son, Zander.  Georgia law provides that if one parent dies, the surviving parent is the sole natural guardian, even if the parents were divorced and the deceased parent had sole custody.  Furthermore, even if the deceased parent had designated another person as the Guardian over the child in his or her Last Will and Testament, that designation would not be carried out if the minor child has a biological parent still living.  Therefore, in the case of McCready’s 6 year old son, his biological father would immediately resume the role of legal and physical custodian.

This will likely be an issue for McCready’s mother, who had temporary custodial rights over both minor children before McCready committed suicide.  Many wonder whether she would have the right to overcome Zander’s biological father’s rights.  In Georgia, upon Petition by a specified third party, the Court has the discretion to award custody to a third party, though the legal standard is much higher than that set out in a normal custody case.   Specifically, the third party would have to demonstrate that 1) the parental custody would harm the child and 2) that an award of custody to the third party would best promote the children’s health, welfare, and happiness.  The harm must either be physical, or long term emotional harm.  Furthermore, the only parties that may petition the court for custody under this legal standard are grandparents, great-grandparents, aunts, uncles, great uncles, great aunts, siblings, or adoptive parents.  Such a custody award to a third party must be based on the best interest of the children, with the legal presumption favoring the child’s biological parent.

Unfortunately, the situation is more complex for McCready’s youngest son, Zayne, who is only 10 months old.  Zayne’s biological father, David Wilson committed suicide in January, leaving him with no biological parent to immediately assume custody.   In Georgia, if both of the child’s biological parents are deceased, the Probate Court intervenes to appoint a Guardian for the minor.   If the deceased parent died with a valid Last Will & Testament that designated a guardian for the minor, that person would presumably receive letters of Guardianship over the minor and have all rights, powers, and duties of a permanent Guardian.  If a parent dies without a valid Last Will and Testament, the Probate Court must appoint a permanent Guardian for the minor child.  So as fans mourn the tragic ending for Mindy McCready, the legal battle over her two sons is likely just beginning.