In a child custody arrangement, usually one parent will have more custody rights with a child than the other parent. This parent is usually called the “custodial parent”; the child usually lives with this parent for the majority of the time. The custodial parent often has legal custody over the child as well (i.e., they are authorized to legally make decisions on behalf of the child).

The other parent is called the “noncustodial parent”, and may have more limited custody rights. They may be entitled to visitation rights with the child (for instance on weekends).

Regardless of which parent had primary custody, after the death of the custodial parent, the surviving parent will be considered the child’s natural guardian. The noncustodial parent’s parental rights are not terminated by an order of custody in such instances. 

If appropriate, child custody will usually go to the surviving parent. Unless they are found to be unfit, if a surviving parent comes forward, then they will likely be granted custody of the child.

What is Acknowledgement of Paternity?

Paternity will have to be established if the surviving parent of the child is the father. An unmarried father will typically have to sign an acknowledgement of paternity (AOP) form to establish legal paternity rights to a child. 

Without a signed AOP, an unmarried father does not immediately have rights to a child; he will have to go to court to establish paternity at a later time. If paternity is proven after the child’s birth certificate has already been issued, then the certificate can be changed based on the court’s findings.

The biological father can also initiate or request paternity testing after the death of the custodial parent. Different states may have different laws and procedures for acknowledging paternity of a child. Thus, it is important to refer to your state’s child custody guidelines when you want to find information about what to expect when initiating paternity testing. 

There are certain rights guaranteed by signing an acknowledgement of paternity. These may vary by case, but will usually include:

  • The guaranteed right to be responsible for child support;
  • The right to have their name on the child’s birth certificate; and
  • The right to be consulted and contacted in the event of an adoption proceeding.

However, signing an acknowledgement of paternity does not immediately guarantee the right to child custody or the right to visitation. This is because these are broad matters that generally involve separate court procedures.

This process can be long and difficult, but often paying child support shows the father’s willingness to be involved in the child’s life. So even if the child’s new guardians, like their grandparents, do not want to give the father right to visitation, the court can override their wishes to ensure that the child can form a relationship with their surviving parent. 

When Would a Court Not Give Custody to a Surviving Parent?

An example of a case where a court would not award custody is if an ex-wife remarried before her death and her new husband adopted the child. A step-parent adoption typically terminates the biological parent’s rights toward the child. This also includes the right to receive custody upon the death of the custodial parent. 

Also, if your ex-wife had a valid will in place, then the will might say who she feels should receive custody of the children upon her death. The court does not need to follow the ex-wife’s request, but the court may take the request from the will into consideration when determining custody.

Very young children are not considered to be capable of making major decisions for themselves, such as who they prefer to live with after the death of the custodial parent. However, older children can often be in a place to decide on their own whether they would prefer to live with the other parent or a different guardian. Each state has different laws and guidelines in terms of how old children must be before their opinions on their custody can carry weight with a judge.

The judge may honor their preference if the children are old enough to make such decisions in your state and if they request a different guardian. It is important to note that in some states such as California, child custody automatically transfers to the non-custodial parent after the death of the custodial parent. 

If your ex-spouse did not specifically state in the will that you should have custody of the children or noted their preference for a different guardian, this means that your claim for custody will not go uncontested.

Additionally, if the surviving parent is known to have abused the children, then the court would not grant them custody. This includes any physical abuse and sexual abuse. It is important that this is known, so ideally a record of either sworn statements or police involvement can help ensure that the abusive, surviving parent is not allowed custody (or contact) with the children. 

How Can a Third-Party Obtain Custody of the Children?

In some cases, it is possible that a court will also consider third-party child custody. For example, a close family friend can be made the child’s legal guardian. Before giving custody to a third-party, a court may often consider the following factors:

  • The best interests of the child;
  • The child’s relationship with the third-party adult;
  • The wishes of the child and of the parents;
  • The child’s adjustment to school, home, community, and other factors; and/or
  • The non-parent’s ability to provide for and support the child, both financially and emotionally.

Where Will the Child Live?

In most cases, upon the death of the custodial parent, the child will take residence in the same state as their surviving parent. Divorce decrees are governed by state law. This means that a parent sometimes cannot assert automatically custody of their child if their child is from another state. 

This type of situation frequently happens when after a divorce and awarding of custody, the custodial parent and child decide to move to another state. On the other hand, by allowing a child to take residence in a surviving parent’s state, that given state has the power to assign custody to the surviving parent.

Should I Hire a Lawyer for Help with Child Residence and Custody Matters?

The loss of a parent is often devastating, and it’s important that the child be able to adjust and feel safe. If you have any concerns regarding child custody and residence after the death of a custodial parent, then it is in your best interest to consult with an experienced child custody attorney. Your attorney can provide you with advice and guidance to determine what options are available.