Does one parent get full custody if the other one dies? 34 Answers as of June 26, 2013

Divorced parents, having joint custody of their children one parent is remarried but he dies. Does the other one have full custody of the children without a hearing? Does the spouse of the deceased having any claim to the children?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
The spouse of the deceased could file a non-parental custody action.
Answer Applies to: Washington
Replied: 8/25/2011
Law & Mediation Office of Jeffrey L. Pollock, Esq.
Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
You might want to file a Motion for Standing as well as a Complaint for Custody. If you have been acting "in loco parentis," then explain to the court why your step-child would be best served by being in your custody.
Answer Applies to: Pennsylvania
Replied: 8/22/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
The spouse could file for guardianship if the other parent was not really involved in their child's life. If that is not the case, and they were involved, then no, typically, the biological parent has full custody.
Answer Applies to: Wisconsin
Replied: 8/20/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
The spouse of the decreased parent has no claim at all on the child and the remaining parent is presumed to be the parent of the child.
Answer Applies to: Alabama
Replied: 8/19/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
The surviving parent has custody.
Answer Applies to: Connecticut
Replied: 8/19/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    There are unique circumstances in every case, but assuming nothing unusual, the deceased parent's rights died with him/her. The remaining parent is the only living parent and therefore the only person with parental rights. Keep in mind, this is a broad question without any facts, so the answer is given to the question as asked. If the other parent was the custodial parent and your rights were restricted in some form that changes everything.
    Answer Applies to: Texas
    Replied: 8/18/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Yes. The other biological parent would have custody by default absent a court order to the contrary and assuming that parental rights were not terminated.
    Answer Applies to: Minnesota
    Replied: 8/18/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    If he is dead then, yes, you have sole custody, but you should notify the Friend of the Court of his death, if you haven't opted out of the FOC. The surviving spouse has no rights unless the existing order says otherwise.
    Answer Applies to: Michigan
    Replied: 8/18/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Full custody goes to the surviving parent but the step parent can apply for rights to access or custody depending upon the situation.
    Answer Applies to: Connecticut
    Replied: 8/18/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    The spouse of the deceased does not have any rights to the children upon the death of a parent. Even if the deceased parent has primary custody of the children, the children will go to the other parent.
    Answer Applies to: California
    Replied: 8/18/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    No. When one parent passes away then the other parent retains custody rights. You could request of the court to have visitation with your step children and it would be up to the court to decide.
    Answer Applies to: California
    Replied: 8/18/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    No, because they are not their biological parent. Further there is a Utah statute that covers this kind of situation and what you would have to do in order to get visitation if you are not the biological parent.
    Answer Applies to: Utah
    Replied: 8/18/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    The spouse of the deceased has no rights. In Georgia the other parent automatically has sole custody. No court hearing is needed.
    Answer Applies to: Georgia
    Replied: 8/17/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    As a general rule, the surviving spouse regains all of the exclusive custodial authority as the child's parent. The step-parent (surviving spouse of the deceased parent) has no legal rights and very limited standing to seek any legal rights from a court as a step-parent. Under appropriate facts, a court might be convinced that some form of continued relationship between the child and the "former step-parent" is in the best interests of the child, but that would likely be a difficult case to present. However, as a responsible parent you should assess the past relationship between your children and the step-parent and decide for yourself whether terminating any further relationship would harmful to the child regardless of what a court might do. You will have the final say, but you should exercise that authority wisely and without regard to any possible resentment you have toward the step-parent.
    Answer Applies to: Colorado
    Replied: 8/17/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    Yes, the surviving parent has full custody, as only parents are entitled to custody in California. If a stepparent has a close relationship with the child, they can file for stepparent visitation, but it is difficult to obtain without the consent of the surviving parent.
    Answer Applies to: California
    Replied: 8/17/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    The surviving parent has custody of the child; however, the stepparent might have grounds to request an order for visitation if this would be in the child's best interests.
    Answer Applies to: Arizona
    Replied: 8/17/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    By operation of law the child goes to other parent.
    Answer Applies to: California
    Replied: 8/17/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Buy operation of law, a surviving parent automatically gets custody of a child if the other parent dies. The step-parent should have no rights. All custody cases should be discussed with an experienced family law attorney
    Answer Applies to: Georgia
    Replied: 8/17/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Yes, if one parent dies the other has full custody. The step parent can petition the court for visitation as someone who has a "parent-like" relationship with the children.
    Answer Applies to: Wisconsin
    Replied: 8/17/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In Washington State, the only two people in the world who have any rights or responsibilities to the children are the parents.If one dies, the other has all the rights and responsibilities.The spouse of the deceased parent could file a third party custody action but she would have to prove the remaining parent is unfit.The best thing the spouse of the deceased parent can probably do is be very nice to the other parent and demonstrate how it is in the kids best interest to maintain a relationship with the step-parent.
    Answer Applies to: Washington
    Replied: 8/17/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    The wife of the deceased can make an application for custody.
    Answer Applies to: New Jersey
    Replied: 6/26/2013
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    The remaining spouse would become the custodial parent if the parties had joint custody. Some courts have allowed a step-parent to have visitation if they have a long-standing relationship with the child and it is in the best interest of the child. Grandparents of the deceased parent will have visitation rights in most cases, again, depending on the circumstances and the best interest of the child.
    Answer Applies to: Louisiana
    Replied: 8/17/2011
    Law Office of Rhonda Ellifritz | Rhonda Ellifritz
    The custody does not automatically transfer over to the stepparent, there would have to be a hearing on the matter. Many factors would have to be considered before the Court would issue an order for visitation to a stepparent. It all boils down to what would be in the best interests of the child. Basically, it would depend on the length and quality of the relationship between the child and the stepparent.
    Answer Applies to: California
    Replied: 8/17/2011
    Linda C. Garrett Law
    Linda C. Garrett Law | Linda Garrett
    As a general rule of thumb (and assuming joint legal custody), the surviving parent has full physical/legal custody of the child. Unless there is a court order that says otherwise, the step-parent has no automatic legal claims to the child. As with any general rule, there is always an exception. For instance, step-parent could go to court and explain a unique situation to the court about you or the child that would NECESSITATE the NEED for the child to stay with stepparent. For instance, surviving parent lives in the Arizona desert and child lives in California and needs to receive continued medical care for a specialist who is only available in California. So, if you do not have any unique circumstances warranting an exception to the rule, then the surviving parent would have full physical/legal custody of the child.
    Answer Applies to: California
    Replied: 8/17/2011
    Lewis, Pfanstiel & Williams, PCLO
    Lewis, Pfanstiel & Williams, PCLO | Ryan J. Lewis
    The surviving parent will have full custody.
    Answer Applies to: Nebraska
    Replied: 6/26/2013
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    Automatically? No. But a fit parent has a superior claim to custody of a child to that of any third party, including a step-parent.
    Answer Applies to: Nevada
    Replied: 6/26/2013
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    Yes. Generally, a surviving biological parent, assuming that he or she is interested, has priority over third parties. That would normally include priority over the spouse of the deceased biological parent. I am assuming that there is nothing major wrong with the surviving parent. I suppose the surviving spouse could try to assert some rights to the child under the doctrine of "de facto parent." However, this is likely to entail an expensive trip through the court system, with no guarantee of any sort of positive outcome.
    Answer Applies to: Washington
    Replied: 8/17/2011
    Law Office of Jennifer L. Marshall, LLC.
    Law Office of Jennifer L. Marshall, LLC. | Jennifer L. Marshall, Esq.
    If one parent dies the other parent does not automatically get full custody. He or she must file a motion with the Court to get full custody. It is important that you have a copy of the death certificate to show they are deceased. If the spouse of the deceased never adopted the child he/she will have no claim claim to the child. This does not mean the spouse will not try to get visitation rights with the child.
    Answer Applies to: New Jersey
    Replied: 8/17/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    If a parent dies, then the other parent will have sole legal and physical custody since there is no other parent to share custody with.
    Answer Applies to: California
    Replied: 8/17/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    Once a parent dies, the other parent has a legal right for the children to be with them. Unless there are court orders for a 3rd party to have visitation with the children, there will be no need to return to court.
    Answer Applies to: California
    Replied: 8/17/2011
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