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What Happens When the Custodial Parent Dies?

Towson Divorce Lawyers at Huesman, Jones & Miles, LLC Help Parents Plan Custody Arrangements.

A child custody arrangement can be fairly easy to arrange or somewhat more complicated. However, the situation can change drastically in the unfortunate event of a custodial parent’s passing. In the best case scenario, a non-custodial parent can assume this role. Every situation is different, though.

If the parents held joint or shared custody of their child, then the process is less involved and you can petition for custody. With non-custodial fathers, paternity needs to be established through paternity testing, an acknowledgment of paternity form, or a birth certificate that has the biological father’s signature. The biological father would also have to file an Acknowledgment of Paternity (AOP) form. The procedures for establishing paternity vary from state to state, so this should be looked into before proceeding.

If your ex-spouse was the custodial parent, had sole custody, and died after the divorce, you might have to go to court to receive custody. It can be difficult if there is a history of drug addiction, crime, or child abuse. Courts may also decline custody to surviving parents when the child has been legally adopted by someone else, there is a will stating that another party should have custody, or the child is old enough to make their own decision. It is important to know that the age for that varies depending on the state, and other reasons can be challenged by biological parents as well.

Another possible situation arises when the parents were never married, but this might not be all that complex if there is proof of paternity. Remember, courts usually determine that staying with the biological parents is in the child’s best interests, so if you fall into that category, you have that in your favor.

What if There Is No Non-Custodial Parent?

Without a viable non-custodial parent who is able to care for the child, custody could be awarded to other biological relatives, like grandparents, aunts, and uncles. There could be a family friend willing to step in as well. On the other hand, if the deceased custodial parent had remarried and there is a stepparent, the latter might want to pursue adopting the child if they have not done so already. This will greatly depend on the child’s relationship with the stepparent, and matters can get complicated if the non-custodial, biological parent is seeking custody as well.  With stepparent adoptions, the non-custodial parent would need to terminate their parental rights.

If both parents have passed away and there were no arrangements made for a legal custodian, family members may be able to take over the responsibility. Courts look to grandparents first for the most part, followed by siblings and then  more distant relatives. If there are no relatives or family friends who can assume custody, the child ends up becoming a ward of the state.

How Courts Make Their Custody Decisions?

These decisions are based on the child’s best interests and state laws. Courts will base their determination on several factors, such as:

  • The parent’s ability to give the child food, clothing, shelter, education, guidance, and medical care.
  • The parent’s physical and mental health.
  • How strong the emotional bond is between the parent and child.
  • The child’s physical and mental health, age, and sex.
  • The child’s current living pattern, including school, home, religious institution, community, and the impact of any changes to it.
  • The parent’s lifestyle.
  • If the child is mature enough to convey an opinion, this can also influence the final decision.

These will also apply to anyone else who is applying for legal guardianship, and courts look for adults who can provide stable, caring environments. If the child has to become a ward of the state, they will end up in the foster system, and caring relatives and friends who cannot assume custody are not able to choose where the child will eventually end up living.

In Maryland, those who wish to pursue custody after the custodial parent has died should become familiar with any state laws that apply. If the child lives out of state, additional rules will come into play. As a guideline, you may need to complete a Complaint for Custody form to ask a court to grant custody, and there may be a fee for this. You might also need to create a parenting plan and schedule a hearing date. If the court is not in agreement or someone else is trying to get custody, it may be necessary to initiate steps for a custody trial.

How Can You Prevent a Child From Going Into Foster Care?

Although it is not that common for custodial parents with young children to die, it is a possibility that can be prepared for by specifying legal guardians when creating a child custody arrangement. This is not a responsibility that can be taken lightly, so you will need to speak with the person at length to see if they are truly able and willing. The person needs to fulfill parental obligations, like providing the child with basic necessities, protecting the child from danger, and maintaining all of the child’s physical and mental health needs.

Legal guardians also have to act responsibility and honestly regarding the child’s finances, with good judgment and good faith. The child’s funds should be kept separate from the guardian’s, otherwise there might be a breach of fiduciary duties. This can also be detailed in a custody plan and can provide your child with a legal framework in the event of a tragedy. Legal documents like these also need to be updated from time to time.

Towson Divorce Lawyers at Huesman, Jones & Miles, LLC Help Parents Plan Custody Arrangements

If you need help planning a child custody arrangement or something has changed with your current one, reach out to one of our experienced Towson divorce lawyers at Huesman, Jones & Miles, LLC. We will fight to protect your child’s best interests. Complete our online form or call us at 443-589-0150 to schedule a free consultation. Located in Towson and Hunt Valley, Maryland, we serve clients in Baltimore, Baltimore County, Bel Air, Bentley Springs, Columbia, Freeland, Hereford, Hampton, Westminster, Essex, Monkton, Sparks Glencoe, Parkton, Phoenix, Pikesville, White Hall, Carroll County, Harford County, and Howard County.

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