Regardless of which parent had custody, after the death of the custodial parent, the surviving parent will be considered the child’s natural guardian. The non-custodial parent’s parental rights are not terminated by an order of custody and if appropriate, the child will go to the surviving parent. Unless they are found to be unfit, if a surviving parent comes forward, they will likely get custody of the child.

Acknowledgement of Paternity

Paternity will have to be established if the surviving parent is the father. An unmarried father will have to sign an acknowledgement of paternity (AOP) form to establish legal paternal rights to a child. Without a signed AOP, an unmarried father does not have rights to a child and he will have to go to court to establish paternity at a later time. If paternity is proven after the birth certificate has already been issued, the certificate can be changed based on the court’s findings.

The biological father can also initiate paternity testing after the death of the custodial parent. Different states have different procedures for acknowledging paternity of a child and it is important to refer to your state’s child custody guidelines when you want to find information about what to expect when you initiate paternity testing. There are certain rights guaranteed by signing an acknowledgement of paternity including:

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

However, signing an acknowledgement of paternity does not guarantee the right to child custody or the right to visitation because they involve separate court procedures.

When Would a Court Not Give Custody?

An example of a case where a court would not award custody is if an ex-wife before her death, remarried and her new husband adopted your child. A step-parent adoption typically terminates the biological parent’s rights and this includes the right to receive custody upon the death of the custodial parent. Also, if your ex-wife had a will, the will may 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 into consideration when determining custody.

Small 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 decide on their own whether they would prefer to live with the other parent or a different guardian. Each state has different 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 your children are old enough to make such decisions in your state and if they opt for a different guardian. It is important to note that in some states such as California, custody automatically transfers to the non-custodial parent after the death of the custodial parent. If your ex-spouse did not stipulate 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.

How Can a Third-Party Obtain Custody?

It is possible that a court will also consider third-party child custody. For example, a family friend can be made the child’s legal guardian. Prior to giving custody to a third-party, a court will consider the following factors:

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

Where Will the Child Live?

In most cases, the child, upon the death of the custodial parent takes residence in the same state as their surviving parent. Divorce decrees are governed by state law which means that a parent cannot assert custody of their child if their child is from another state. This type of situation happens when, after a divorce and awarding of custody, the custodial parent and the child decide to move to another state. But 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.

Where Can You Find the Right Lawyer?

The loss of a parent is devastating, and it's important that the child is able to adjust and feel safe. If you have any concerns regarding child custody and residence after the death of a custodial parent or are facing this very serious issue, then it is in your best interest to consult with an experienced child custody attorney.