What Will Happen to the Children if a Custodial Parent Dies?

If you're the custodial parent to your child, you may have a number of questions revolving around the care of your child should you die while they're still a minor. While each and every custody case is different, below is a general overview of how the death of a custodial parent is handled and what you can do to ensure your child's well being during such a difficult time.

Who gets automatic custody?

The first thing you're likely wondering is, who will get automatic custody of your child if you were to die? This will vary from state to state and from custody situation to custody situation, but it's generally assumed that the non-custodial parent will receive full custody of your child upon your death.

Of course, the non-custodial parent can only get custody if they're the child's parent in the eyes of the state. So, as long as parental rights of the other parent haven't been terminated, the non-custodial parent can fight (and will usually win) custody. For non-custodial fathers, this would mean filing for paternity and proving paternity with the help of a paternity test. For non-custodial mothers, maternity usually doesn't have to be established, but they may be required to prove they're fit to parent their child. So, if the non-custodial parent doesn't have regular visitation with your child or hasn't been legally established as the parent, automatic custody would likely revert to a grandparent or other relative who they're close with, at least until the other parent can prove their parental status.

Can a grandparent or other close relative be granted custody over a parent?

If you feel that your child's non-custodial parent isn't fit, you may be wondering whether you can name a grandparent or other relative as your child's guardian should you die. This is possible in some cases, but it takes quite a bit for a parent to be proven unfit and for their rights to be stripped.

In the majority of cases, a judge will not take into account the wishes of the deceased custodial parent as long as the non-custodial parent is fit and willing to parent. You may have a number of reasons why you don't want the non-custodial parent to be part of your child's life, but until the court decides otherwise, you may not have much in the way of legal standing to prevent guardianship from going to your child's other parent. If you do believe that you have reasons to back your decision, it'd be a good idea to speak with a custody lawyer about your concerns now.

Is it possible to prove the other parent is unfit before something happens to you?

If you have serious concerns about the well-being of your child should they be placed in the non-custodial parent's care, you may be able to prove that your child's other parent is unfit and have their parental rights severed.

Unfortunately, the removal of parental rights is a long and difficult road, but there's a few things that may speed up the process, such as proof of drug or alcohol abuse or child abuse. The process of parental rights termination varies widely from state to state, so it's vital that you speak with a knowledgeable custody attorney as soon as possible. In some states, for example, parental rights can only be severed (forcefully or voluntarily) is another person is willing to take on the responsibility of raising the child (i.e. a stepparent). Because of such stipulations, it's important to speak with an attorney about your individual case.

To learn more about custody and parental rights and how you can protect your child should you pass before they become 18, consult with an experienced custody attorney today.