Family Law Blog

Who Gets Child Custody If Your Former Spouse Dies?

Friday, August 25, 2017

What happens when your former spouse, who was awarded custodial rights over your children, suddenly passes away? In most cases, custodial rights will revert back to you, the remaining surviving parent. However, other factors can come into play as well. Here are some common issues that arise.

If You Are Unfit

Courts will be looking out for the child’s best interests. In most cases, their best interests is to be with their biological parent. If, however, you are deemed unfit for taking care of them (for example, if you have a history of child abuse), the court will probably deny you custodial rights.

If Your Spouse Left a Will

If your spouse left a will stipulating who should be the guardian of your child, that will generally not have any direct effect. Your spouse did not own your child. The courts may, however, take your spouse's suggestion into consideration in their final ruling when analyzing what will be the best thing for the child.

If a Third Party Intervenes

Although you will usually be awarded custody, a third party can still intervene. A grandparent or other relative has the right to petition the courts for custody. They will usually have to prove that staying with you will cause harm to the child.

If Your Spouse Remarried

What if your spouse remarried? The existence of a stepparent may complicate things. If the stepparent formally adopted the child and your parental rights were terminated, they will generally retain custodial rights unless you adopt your child again. If, however, the stepparent did not adopt the child and you still retain parental rights, things may be different.

Contact us for legal help in any case involving child custody so that we can help you out.