The death of a custodial parent raises a variety of legal issues, the most important being who assumes custody of the children. Although some variations exist in custody laws from state to state, statutes addressing the custody of children following the death of the custodial parent largely are the same, according to "Child Custody A to Z" by Guy J. White.
Presumption
The presumption under the family law statutes across the country is that the surviving, noncustodial parent assumes custody of the children upon the death of the custodial parent, according to the American Bar Association Section of Family Law. Although this course is presumed, exceptions occur depending on the circumstances of a particular case. For example, if the court previously suspended the noncustodial parent's visitation because of concerns for the children's welfare, the judge is not at all likely to transfer custody to that parent, at least initially.
Misconceptions
Of the misconceptions associated with child custody and death is the authority of the custodial parent to plan arrangements for the children to become effective upon her death. For example, some individuals wrongly assume that a custodial parent can set out in his will what he wants done with the children, a decision that overrides the rights of the noncustodial parent. In fact, assuming the noncustodial parent is alive, such a provision is generally of no effect, according to the American Bar Association Section of Family Law.
Time Frame
Immediately upon the death of a custodial parent, a court typically is called upon to issue an emergency temporary custody order. Usually the children are placed in the custody of the other parent or another family member until the court conducts a thorough hearing regarding a more permanent custody arrangement for the children.
Standard
A court is called upon to develop a custody arrangement and order that is in the best interests of the children after the death of the custodial parent, according to Cornell University Law School. Although the noncustodial parents has rights, as might other family members, ultimately the focus of a judge is on what custody plan best meets the needs of the children.
Expert Assistance
If you find yourself in a situation in which a custodial parent died and you are involved in the process of developing a new custodial arrangement, consider retaining a lawyer. The issues that arise in these cases are complex and not readily resolved without a legal background. The American Bar Association has resources to help you find a lawyer in these circumstances.
References
- "Child Custody A to Z"; Guy J. White; 2005
- American Bar Association: Section of Family Law
- Cornell University Law School: Child Custody Overview
