What If One of a Child’s Separated Parents Passes Away?

Divorce and everything associated with it can significantly affect your child’s mental well-being. Sharing custody with your ex-spouse often makes things better for your children as they will grow up with the love and care of both parents. However, if your ex-spouse passes away, you may wonder how custody is affected.

California state laws address the death of a custodial parent and who is awarded custody in such cases. Knowing what the law says and the steps you should take to get custody is vital as a surviving parent. Read on to learn more about California custodial laws and how a family law attorney can help you in your case.

What California Law Says

The law gives the surviving parent sole custody when a custodial parent passes away. This is because the original custody order becomes moot when one parent dies. Therefore, the surviving parent will automatically take custody of the child as stipulated in California law. While this is commonly the case, there is an exception. When the surviving parent is deemed to be unfit to take custody of the child, there will be no automatic transition in guardianship. In such cases, another custody agreement will have to be made for the child’s sake. Some of the common alternatives include:

• The child will be entered into foster care in preparation for adoption
• Another family member, including grandparents, uncles, or aunts, will be given custody of the child.

If there is doubt in the surviving parent’s ability to care for the child, a court case will be required to give the final verdict on the custody arrangements. In the course of these court hearings, the child will be given a temporary guardian to care for them until the custody case is decided. The courts often prioritize the child’s interests when deciding custody.

The Wishes of the Child

When the custody case involves an older child, the court will consider the child’s preferences when deciding on the legal guardian. In California, there is a specific age cap a child must have before being involved in the decision-making process. It is vital to note that the child’s wishes will never be the only factor considered when the court decides. Instead, the judge will carefully evaluate the conditions and consider the child’s best interests, even if the child has a personal preference that doesn’t coincide with the judge’s decision. This shows how complex child custody cases can be, especially after the death of an ex-spouse.

Will of the Deceased Parent

In some cases, the deceased custodial parent could, in their will, have specified a preferred guardian for their child. If the name in the will is not that of the child’s surviving parent, it does not automatically override the surviving parent’s rights. While the court doesn’t have to follow the will, the wishes of the deceased parent are considered when determining guardianship. If the will gives compelling reasons as to why a specific individual is the best suited for the guardianship role, the court will verify the details and make the final call.

Let Mattis Law, A.P.C Help You

If you are a surviving parent fighting for the custody of your child after the death of your ex-spouse, our dedicated San Diego custody attorneys at Mattis Law, A.P.C. are ready to help. We know the dynamics of such cases, and we will consult with you to determine how we can help protect your rights as a surviving parent. We have helped many parents in your situation in San Diego and know what it takes to get a favorable decision. Call us at (858) 328-4400 and schedule your consultation today.