What Happens if a Custodial Parent Dies?
Children involved in custody battles go through so much emotionally. What happens when the custodial parent passes away and there are minor children involved? The child/children’s life is then potentially turned upside down not only with the passing of a parent but also their home life. They may possibly have to change schools, make new friends, and get used to a new home living with someone else — usually the other parent.
Typically when a custodial parent dies, it is usually not complicated for the noncustodial parent to obtain custody. It is still advisable to enlist the help of a family law attorney experienced in child custody to ensure the process runs smoothly and to be aware of any possible issues.
One Parent Dies While Married
If one parent passes away and the parents were married and both held custody, the custody of the child/children will automatically pass to the surviving parent. Most states will permit grandparents and other relatives to ask for visitation rights as well.
Death after Parents are Divorced
If the parent that had sole custody passes away, in order for the other parent to get custody they may have to go through the court to obtain custody. This is true when the parent has a history of drug use, child abuse or crime. Again, the court must look at what would be in the best interests of the child/children. If there is no negative history, the other parent can at least get temporary custody of the child/children until the court decides on permanent placement. The process is less difficult if the parents shared custody.
Custodial Parent Remarries Then Dies
The situation can become difficult if the custodial parent remarries and then passes away, now leaving a stepparent. The court will look at the relationship the child/children has with the stepparent and the length of time they were together.
If the stepparent adopted the child/children, their custodial rights will be equal or better than the biological father. Many times, in order for the stepparent to adopt the child/children, the noncustodial parent has to terminate their rights as a parent. This order cannot be reversed with the exception of new adoption.
If the child/children were not adopted by the stepparent, the parental rights are not terminated and the parent can ask the court for custody and even be awarded temporary custody until the order is final. The stepparent and the deceased’s relatives may also file for visitation rights.
Parents are Not Married and Custodial Parent Dies
If the noncustodial parent can provide proof that they are related to the child, the court usually deems staying with a biological parent is in the best interest of the child/children, unless there are situations where the biological parent is judged to be unfit to have custody of the child/children.
The Death of Both Parents
In the event that both parents die, the most common scenario is for a relative to provide custody for the child/children. Generally, the court will first seek grandparents, then brothers or sisters. If the court is not able to find a guardian through either family or friends, the child/children may become a ward of the state.
Contact an Attorney
Enlisting the assistance of an experienced family law attorney in the event of the death of a custodial parent can help ensure the primary objective is looking out for the best interests of the child/children.