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Posted: 06/27/2017 Posted by:

Who Gets Custody of Children If Both Parents Die?

Categories: Family Law

Though it may be an unpleasant topic, it’s still something that needs to be discussed. Both parents and other close family members should be aware of what will happen to children if both their parents die. Though it may initially seem to be fairly simple and intuitive, there are some complexities that could cause issues… and ultimately everything will be decided in light of what is in the best interest of the child.

What Happens When a Child’s Parents Die?

The right of a natural or adoptive parent to the custody of their child is generally presupposed unless there are extreme mitigating circumstances (such as past abuse or neglect). Thus, if one parent dies, the surviving parent will nearly always have the opportunity to request an award of  custody. This is true even if the deceased parent had requested that their child go to another friend or family member. One parent cannot take away the rights of the other parent on their own. But what happens if both parents have passed on?

In general, the wishes of the last parent to pass on are the ones that will be considered by the courts. If a mother dies first and the father dies second, it is the custody arrangements that are outlined by the father’s will that are going to be considered, because custody will have passed from the mother to the father and then onwards. This becomes more complicated in the event that both the mother and father died at the same time, such as by car accident. If there are conflicting wills, the courts may need to get involved.

Either way, the arrangements for the child’s custody are generally informed by the wills of the parents. Problems arise, however, if the parents did not have wills. In that situation, the courts will have to make a decision on custody.

How Do the Courts Decide On Custody?

Absent of a will, courts will generally award custody to the individuals who are most closely related to the child. This will start with grandparents and then cascade down to aunts, uncles, and cousins. If there are no close family members, the courts may look to very close family friends. The courts are always going to consider what is best for the child first: if there is anyone in the family with a strong, pre-existing, and proven relationship with the child, then it is very likely that they will be able to acquire custody.

Courts may also be called upon to decide on custody if there is a custody dispute. For instance, a child’s custody may have been given to a grandparent against a step parent’s wishes. In these situations, the courts will hear all evidence and statements and, again, make a decision based on the well-being of the child involved. This decision can be based on many factors, including where the child would live and what would be less disruptive for their lifestyle.

Custody is only one of the many issues that are covered by a will. A will is not solely to determine the distribution of assets: it’s an incredibly important part in securing the future of a person’s children. Because of this, it’s important that everyone create a full estate plan, regardless of how much they own or where they are in life. Covelli Law Offices provides legal services with matters such as Wills, Trusts, Power of Attorney, and other estate planning documents to help secure the protection and care of your estate and your family.