Death of a Parent in a Custody Case
If two parents are involved in a custody case and one parent dies, adjustments will need to be made to the surviving parent’s custodial schedule. In some cases, the surviving parent will simply become the full-time parent of the child(ren), ending any prior shared legal or physical custody arrangements. In other cases, there may be other individuals who claim to have custody rights to the child(ren) who may or may not be able to successfully intervene in the existing custody matter.
In cases where one parent dies, but the other survives, the deceased parent’s parents (i.e. the child(ren)’s grandparents) may choose to intervene in the custody matter. Grandparents whose child dies have the right to intervene in a custody matter involving their grandchild(ren) under state law, without any preliminary showing that they had any custody time with the child(ren) prior to the parent’s death. Being permitted to intervene (i.e. get involved) in the custody case, however, does not necessarily mean that the grandparents will be granted any custodial time. Typically, grandparents who intervene in a custody matter using this provision do not have any legal custody rights (decision making) to the child(ren), only physical custody rights. This means that while they may be granted custodial time with the child(ren), any major decisions regarding the child(ren) (such as education, religion, medical decisions, etc.) will continue to be made by the surviving parent.
In some cases, depending on the grandparents’ previous care of the child(ren) or the surviving parent’s ability to care for the child(ren), grandparents may intervene in a custody case under a different statutory provision that permits them to seek not only physical, but also legal, custody. Oftentimes, grandparents may choose this route when the surviving parent has drug and alcohol issues, mental health issues, or difficulty with maintaining a suitable living situation for the child(ren).
In cases in which both parents are deceased, grandparents may seek full custody of the child(ren), or they may seek to split custody with the child’s other grandparents, stepparents, etc.
Stepparents often wish to maintain contact with stepchild(ren) after the death of their spouse (the parent of the child(ren)). They may choose to file for custody of the child(ren) if they have acted in loco parentis to the child(ren) (if they have performed the duties of a parent) or if they have serious concerns about the child(ren)’s well-being due to the surviving parent’s issues with drugs and alcohol, mental health, housing, neglect of the children, etc. In cases in which both parents are deceased, a stepparent may also want to seek full custody of the child(ren), or split custody with the grandparents, the other stepparent, etc.
If you are interested in discussing your particular custody circumstances in more detail, contact Tanner Law Offices at (717) 731-8114 to schedule a consultation with one of our attorneys.