Puja Sachdev | December 28, 2022 | Child Custody
The death of a parent or guardian is devastating for a child. In addition to the grief of losing a parent, the child’s entire world could turn upside down. Under normal circumstances, the surviving parent assumes sole custody of the child.
However, what happens if the other parent is unfit or unable to assume custody? What happens to the child?
Is There a Child Custody Order in Place?
If a custody order is in place and a parent dies, the Family Code states that the surviving parent becomes the custodial parent. However, if the parent is unfit, abandons the child, or refuses to accept custody, the court can appoint a guardian to assume custodial care of the child.
A third party can petition the court for guardianship of a child after a parent’s death. Typically, a family member asks to become the custodial guardian for the child. A grandparent, aunt, uncle, sibling, or another biological family member may receive custody.
In other cases, a family friend or neighbor might petition for guardianship. The court can grant guardianship to any adult it finds fit to have legal and physical custody.
However, even if the court grants guardianship to a third party, it does not mean that the surviving parent loses parental rights. The surviving parent may continue to have visitation rights with the child. The court might also order the surviving parent to pay child support to the guardian.
Adoption By a Stepparent
In some cases, a child might be adopted by a stepparent after the child’s parent dies. This situation might occur when the child’s other parent is already dead. Depending on the situation, the court could terminate the surviving parent’s parental rights to allow for adoption by the stepparent.
Stepparents do not automatically receive custody of their stepchildren. They should contact a San Diego child custody attorney immediately to discuss the options for obtaining guardianship or parental rights when their spouse dies.
Does the Court Consider the Child’s Wishes After a Parent Dies?
The court might discuss the situation with an older child. The child has been through a traumatic experience. Therefore, the judge wants to provide stability and support for the child.
If the child’s wishes are reasonable and do not contradict their best interests, the judge might grant the child’s choice of a guardian. Judges may consider the wishes of younger children on a case-by-case basis. However, a child’s wishes are not the only factor a judge considers when determining child custody after a parent’s death.
What Does the Parent’s Will State About Guardianship?
If the parent had a will when they died, the will might state the parent’s preference for guardianship. Typically, a will names a guardian in the event the child’s parents die simultaneously or the other parent predeceases this parent.
In many cases, the court grants the wishes of a parent in their will. However, the judge can choose a different guardian if they determine that the guardian named in the will is unfit for any reason. As always, the child’s best interests take priority over any other considerations or factors.
How Can Parents Protect Their Children If They Die?
No parent wants to consider leaving their child, especially when the child is a minor. However, an estate plan can ensure that the child has the love, support, and guidance they need after the parent’s death.
Parents should discuss who they want to have custody of their child if they die. If they’re divorced, it benefits the child for the parents to agree on a plan if both parents should die.
However, if you disagree with your child’s other parent, you can include any terms in your will that you believe are in your child’s best interest. For example, you can name a guardian that is not your spouse. However, your choice does not automatically override your ex-partner’s parental rights.
On the other hand, you can keep your child’s other parent from accessing or managing your child’s inheritance. By placing the inheritance in a trust and naming a trustee in your will, you can ensure that your child’s inheritance is used for their benefit only. The trustee manages the trust for the benefit of your child.
Life insurance policies can also help provide for a child after a parent’s death. However, talk with an estate planning attorney about protecting the insurance proceeds from your child’s other parent. You might need to set up a life insurance trust or choose a beneficiary you trust to manage the funds for your child.
Whether you are a surviving parent or a parent planning for your untimely death, talking with a San Diego family law attorney can help protect your child.
Contact Our Child Custody Law Firm in San Diego, CA
Sachdev Legal Group, APC
2851 Camino del Rio S #430
San Diego, CA 92108