Death of a Custodial Parent / by Cassandra Hearn

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Following a divorce or custody case, a court will enter an order that grants joint custody to the parents or, in some cases, sole custody to just one parent. The parents will then hopefully work together for many years to ensure that a child has a stable upbringing with regular time with both parents. Unfortunately, in some cases, the custodial parent will pass away before the child reaches the age of majority. 

Section 3010 of the California Family Code was enacted with this unfortunate situation in mind. This statute provides that in the event one parent dies, then other parent is entitled to custody of the child. This still holds true even if the deceased parent had sole physical and legal custody of the child. It is important to note that after a divorce or custody action, even if a non-custodial parent receives very little visitation or contact with the child, that parent still has parental rights. These parental rights include that initial presumption that he or she will receive custody of the child in the event of the custodial parent's death. There are some situations, however, wherein a parent will not receive this presumption, such as when there is a history of physical abuse.

In the majority of cases, the transition from one household to another will be as smooth as can be expected following the death of a parent, as in the majority of cases, the non-custodial parent is a fit parent who will be willing and able to care for the child. There will be cases, though, where the non-custodial parent is not fit to raise the child. In these types of cases, the relatives of the deceased parent may have the option to intervene. In cases where a parent has awarded sole custody to one parent because the other parent is not a fit custodian, third-parties such as grandparents or aunts and uncles will have the opportunity to file a joinder to the case to request that the parent not automatically receive custody of the child. Third-parties should be aware that these cases can be difficult and complicated, but they are not impossible. 

We have extensive experience with helping our clients with complicated custody issues. Call us today at 619-800-0384 for a consultation and we can discuss your child and your future.