Custody When Your Ex-Spouse Passes
Child custody cases are very sensitive and affect a child’s emotional well-being. When an ex-spouse passes on, custody cases become more emotionally charged. As a surviving parent, you should know what the law says and what you will need to do to get custody of your child. This guide will enlighten you on child custody when your ex-spouse passes and how an attorney can help protect your parental rights and the rights of your child.
The Surviving Parent Will Have Custody
When your ex-spouse passes on, the child’s surviving parent will have custody of the child. While this is the common outcome in custody cases, there are some exceptions. For instance, when the court finds the surviving parent unfit to take custody of the child, custody will not be granted. In that case, other family members will be considered for the child’s custody. Typically, the court will seek others who had close relationships with the child, such as grandparents. If no family member can or is willing to take custody of the child, they may be taken to foster care in preparation for adoption.
If the surviving parent has abused the child before, the court may deny them custody of the child. The abuse case will come to light during custody hearings and could influence the court’s decision against the surviving parent. To prove these cases, police involvement or a record of sworn statements will be used. Other parties can request guardianship when the surviving parent is not eligible to take custody of the child. These parties include:
- The child’s grandparents
- Family, friends, or neighbors
- Any other family members or relatives such as aunts or uncles
- Any other adult deemed fit by the court
What If You Are the Grandparent?
In cases where both parents die, immediate family members are considered for custody first. Courts tend to prefer family members over others as they often have existing relationships with the child. Therefore, if you are a grandparent, you could have custody of the child if both parents die. However, the court will evaluate your ability to care for the child before granting you custody. There are cases where other distant relatives claim custody of the child when both parents pass on. In such cases, the court will consider the child’s best interests before awarding custody. Courts will look at the child’s current relationships, education, and established life when considering the best course of action.
Adoption by a Stepparent
Another case where automatic guardianship is not awarded to the surviving parent is when the custodial parent enters another marriage, and their new partner adopts the child. For example, if the child’s mother remarried before passing on and her new partner adopted the child, the stepparent’s adoption overrides the surviving parent’s rights to automatic custody. In such cases, the stepparent may take custody of the child after the custodial parent’s death. This is typically the case even when there is a surviving biological parent.
Let Our Montgomery County Family Law Attorneys Help
If you are fighting for the custody of your child after a death in the family, our attorneys at Law Offices of Sheryl R. Rentz, P.C. are ready to help. We understand that this is an emotional issue, and our Montgomery County family law lawyers will discuss the best course of action for you as it pertains to providing your child the best possible life. We have successfully represented many parents in PA, and we will do our best to help you achieve a more favorable outcome. Call us at (610) 645-0100 to schedule your consultation.