Recently a legal custody battle arose between two divorced parents from London involving their fourteen-year-old daughter's dying wishes. The girl, who had cancer and only a short time to live, had begun making arrangements to be cryogenically frozen with the hopes that in years to come, she would be able to be woken up and cured. However, the procedure required the consent of both of the girl's parents. This meant consent from her father, who she had not had contact with in eight years, was also required. As her father opposed the procedure, her mother brought a suit on the girl's behalf in London's equivalent of a family court. The mother was ultimately successful in getting full rights to decide what would happen to her daughter's remains upon her death. The girl, who has since passed away, has been transported to the United States and is being stored in Detroit.
This is a unique case, because although it involved legal custody of a child and the focus was on the wishes and welfare of the child, most legal custody cases do not involve what will happen to the child after his or her death. If this case were handled in Pennsylvania or in another jurisdiction in the United States, a family court may have declined to hear it and may have deferred the matter to orphans' court after the child's death. However, there are some factors that may have led a Pennsylvania family court to hear the matter. First, the case was brought while the girl, who has not been named for privacy reasons, was still alive and able to testify as to her wishes. Courts in Pennsylvania, when deciding any custody matter, will consider the well-reasoned preferences of a child, giving consideration to the child's age and maturity.
Additionally, it appears that the paperwork had to be submitted before the child's death and the child had to be involved in the preparation process. Therefore, this issue could be likened to any other consent issue involving a child, such as traveling abroad or signing up for an extracurricular activity. Finally, the process had to begin immediately upon the child's death to ensure success, meaning that there likely would not have been time for the issue to be heard by another court before the window of opportunity to start the process was lost.
However, despite the above, if a family court here were to enter an order on a similar matter, the issue would then become whether or not the family court order would be enforceable after the child's death. Custody orders deal with the best interests of the child during the child's life and therefore, the presumption would be that the order becomes null and void upon the child's death. This will not become an issue in the London case, as the father ultimately relented and said that he would abide by the child's wishes. However, with today's emerging technological advances, this is likely a custody issue that may present itself in our jurisdiction for consideration.
If you are struggling with a legal custody issue, call the experienced Pittsburgh custody attorneys at McMorrow Law at 724-940-0100.