Child Residence and Custody: Death of Custodial Parent

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Does a Child, Upon the Death of a Parent Awarded Custody During Divorce, Take Residence in the State of the Surviving Parent? 

In most cases, yes.  Though states have rarely dealt with this issue, the general rule is that upon the death a child’s custodial parent, that child automatically takes residence in the same state as their surviving parent. 

How Does this Affect the Custodial Rights of the Surviving Parent?

Because divorce decrees are governed by state law, a parent cannot assert custody of their child if that child is from another state.  This situation usually occurs when, after a divorce and awarding of custody, the custodial parent and child move to another state away from the other parent.  However, by allowing a child to take residence in a surviving parent’s state, this gives the state the power to assign custody to the surviving parent.

For example, suppose a California couple X and Y, who have child Z, decide to get a divorce.  Y is awarded custody of Z, and the two consequently move to New York.  If Y dies, Z may then be considered a resident of California where X lives.  In this case, because the divorce decree was made in California, X can legally be assigned custody of Y, since Y is now a resident of California.

What if the Divorce Decree Defines the Surviving Parent as “Unfit”?

In a limited amount of states, a surviving parent’s classification as “unfit” has not affected their right to custody of a child at the death of the other parent.  The reasoning behind this is that, when a parent is determined “unfit” in a divorce decree, the term applies only as between the two parents.  Therefore, once the custodial parent dies, the surviving parent retains their equal right to custody of the child.

How Can a Lawyer Help Me?

If you are an out-of-state surviving parent hoping to gain custody of your child, you should contact a family law attorney to learn more about your legal options.  A lawyer can help inform you about child residence laws in your state, as well as explain your custodial rights under your original divorce decree.

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Last Modified: 07-05-2012 03:16 PM PDT

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