Child Custody After the Death of a Parent

Few situations are more devastating than the parent of a minor child prematurely passing away. On top of the emotional trauma this situation can cause for those who knew the deceased, a parent’s death can also be surprisingly complicated in legal terms. There may be disagreement among the child’s loved ones about who should be responsible for their care moving forward.

The Court system can approach the matter of child custody after the death of a parent in several ways, each of which has its own unique considerations that will affect the final outcome. No matter what, guidance from a seasoned child custody lawyer can be key to ensuring that your rights and your child’s best interests are protected during this uncertain time.

Who Can Be a Child’s Guardian If Their Custodial Parent Dies?

In general, if one of a child’s biological parents passes away before that child turns 18, that child’s other biological parent will be granted custody until the child’s 18^th—or in some cases, 21^st—birthday. It is important to emphasize that this is a general guideline rather than a hard-and-fast rule. There are numerous scenarios under which someone else may be named as a child’s guardian following the death of one or both of their birth parents, such as:

• A non-custodial parent who was not in a relationship with the child’s parent when they passed away
• A stepparent who has already adopted or proceeds to adopt the child
• Grandparents or other close relatives of the child
• A trusted family friend
• The state, if no other qualified person is available

While parents do have the right to express their preferences for who should take custody of their child/ren in the event of their premature death, that directive will not necessarily override a biological parent’s right to have custody over their child/ren. The opinion of the Court regarding the best interests of the child/ren in question will always take precedence.

How Courts Make Custody Decisions Following the Death of a Parent

If it falls to a Court to decide who should serve as a minor child’s guardian after one or both of their parents pass away, the Court will consider numerous factors to decide what kind of arrangement would or would not best serve the child’s interests. These factors include, but are not limited to:

• The mental and physical well-being of prospective guardians
• The lifestyle and living situation of prospective guardians
• The ability of prospective guardians to provide for the child’s basic needs, usually without taking into account their overall financial wealth beyond those needs
• The child’s current educational and social situation
• How old the child is and whether they have any special health and/or educational needs

If the child is old enough to express their own preferences for who should have custody over them, those preferences may be factored into the Court’s decision as well.

Seek Further Guidance From a Compassionate Child Custody Attorney After the Death of a Parent

Dealing with custody disputes under any circumstances can be difficult, but they are especially hard when they arise due to a child’s parent passing away. Our family law team is here for you, offering legal support and guidance as you work to find an arrangement that allows the child to get the support they need. Call the Colwell Law Group, LLC, to discuss how our attorneys could help you determine child custody after the death of a parent.