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What Happens to Child Custody When a Custodial Parent Dies?

By George Khoury, Esq. | Last updated on

Child custody issues are sensitive subjects because of the huge emotional consequences. When a custodial parent dies, custody matters can be that much more emotionally charged.

Although child custody laws vary from state to state, generally, when a custodial parent dies, a non-custodial parent can obtain custody without much legal difficulty. Even though the process may seem straightforward, consulting an experienced family law attorney is always advisable to comply with local laws and to be advised of potential consequences.

Death During Marriage

If parents were married and jointly held custody when only one parent died, then custody will automatically go to the surviving parent. However, in this situation, many states will allow grandparents, or other relatives of the deceased parent, to petition for visitation rights.

Death After Divorce

If parents have divorced, and the parent awarded sole custody dies, then the other parent may need to actually go through the court to be formally awarded custody. Fortunately, unless there are reasons, such as a history of child abuse, crime, or drug addiction, the non-custodial parent can usually obtain temporary custody until a court puts a formal order in place. If the parents held joint or shared custody, then the process is less involved.

Death After Divorce And Remarriage

If the custodial parent has remarried and there is a stepparent in the picture, this is when matters can be very complicated. Much will depend on the relationship between the stepparent and the child.

If the stepparent has gone through the formal adoption procedure, they will likely have rights superior to, or at least equal to, your own. Frequently, a step-parent adoption requires the non-custodial parent to terminate their parental rights, which is usually irreversible, excepting through a new adoption.

If the stepparent did not formally adopt, and your parental rights have not been terminated, then you can petition for custody, and obtain a temporary award of custody as well while the full order is pending. However, the stepparent, and other relatives of the deceased, may be able to petition for visitation rights, depending on state law.

Death of Unwed Parent

If parents never married, there may be additional hurdles for a non-custodial parent to obtain custody. If paternity is uncertain, tests may be required to prove to the court that parent and child are related. Barring proof of paternity, this situation is not too different than for divorced parents. Courts generally find that it is in the best interest of the child to be with their biological parents, absent extraordinary circumstances.

Both Parents Die

When both parents die, and a child is left without a legal custodian, it is not uncommon for family members to take the child. Often, parents have selected "godparents" for this exact situation. However, courts will generally look to grandparents first, then siblings, then more distant relatives, as the preference. However, like all child custody decisions, the court is going to look to what is in the best interest of the child.

Also, when there are no relatives willing and able, a child may be taken in by family friends, however courts tend to review these situations more closely than when extended family assume custody. If no one is willing and able to assume custody, a child will become a ward of the state.

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