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An estimated five percent of children will experience the death of a parent before they are adults. If the parents were married or together at the time of the death, the child will remain in the custody of their other parent in most cases. However, if the parents were divorced or never married, particularly if the remaining parent did not have custody of the child, the answer is not as cut and dry. Several different decisions need to be made by the remaining family members and the court system. Those decisions might or might not lead to the remaining parent getting custody of their child.

When Parents Are Married

If the tragedy of a parental death occurs while the parents are married, then the children will generally continue being cared for by their remaining parent. Of course, the remaining parent will need to work through their grief, which, in some cases, makes them unable to care for their children.

However, most of the time, the family will get through the trauma together, and the children will live with their remaining parent until adulthood. If the remaining parent is unable to care for the children for any reason, other options will be considered. In this type of situation, grandparents or aunts and uncles might step in to care for the kids for a short or long period.

Establishing Paternity

If the parents are not and have not ever been married and the mother dies, an essential factor will be whether the father has established paternity. If he has not, he needs to do that before asking the court for the child’s custody. In many cases, fathers can establish paternity by signing the birth certificate. Unmarried fathers can also fill out an affidavit of paternity, which is filed with the state.

If the mother has died and paternity has not yet been established, then the father can do so at any time. A paternity test can also be done; this is a non-invasive genetic test that will prove that someone is not the child’s father. If you are found to be the father, you can petition for custody if your child’s custodial mother has died.

Same-Sex Parents and Stepparents

If a child has same-sex parents and one of those parents is the child’s biological parent, then in some states, the other partner should adopt the child or make sure that they are on the birth certificate. This will help ensure that they are the child’s legal parent if the biological parent should die.

Stepparents will not generally be able to get custody of their stepchild after their parent’s death unless the remaining biological parent is willing to let them have custody. If the stepparent has adopted the child or otherwise becomes their legal guardian, they will be the child’s legal parent/guardian and usually retain custody.

The Remaining Parent Might Get Custody

In cases where the custodial parent has died, the remaining (non-custodial) parent is likely to get custody. It might depend on what the deceased parent had written in their will, what type of custody arrangement there was (did they have joint, primary, or sole custody?), and who had or has legal custody or legal guardianship of the child.

If the remaining parent has not been found unfit or has not been denied custody based on the child’s best interest, then he or she should be able to petition the court to request custody of the child. In all cases, the child’s best interest will be taken into consideration.

Extended Family Members Might Get Custody

Suppose the child’s custodial parent dies, and the non-custodial parent cannot or does not want to have custody. In that case, extended family members like grandparents, aunts, and uncles, or cousins might be able to ask for custody. Again, this might depend on what the parent who has died has written in their will, if applicable.

If there is a custody battle, then a judge will decide who the child will live with and who will have the legal responsibility to decide for the child until they are an adult. Once the child is given to a family member, that person will become the child’s legal guardian and will be able to make decisions for the child and have the child live with them.

The Child Might Become a Ward of the State

In situations where there are no family members or even close friends who can take custody of the child, they will become a state ward. This will generally involve the child moving into a group home or foster care. After the trauma of losing a parent, going into foster care would be challenging for a child, so this option is used as a last resort.

If you are a parent, it is imperative to have a will set up so that if you pass away before your child turns 18, you will have already determined who will care for your child in your absence. If you have sole custody of your child, you will get to make this decision independently.

If you share custody with your child’s other parent, then it’s a meaningful (if uncomfortable) conversation that you should have with them to ensure that each of you is willing to care for the child if the other should die. And if one of you is not able to, then alternative arrangements must be made.

The family court can be a place where tough decisions are made. If you are in a situation where you are fighting for your child’s custody after his or her other parent’s death, you are not alone. Family Law Legal Group can help, and we are an excellent option for those going through a difficult time who cannot hire a private attorney. Contact us today to find out whether we can help you win your case.

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