Dealing with any child custody issue is stressful, especially when the issue at hand involves the death of a custodial parent. When a custodial parent dies, the child may be given to the living non-custodial parent unless there are questions about the non-custodial parent’s ability to care for the child. Nonetheless, it is advisable to get the help of a seasoned family lawyer who can help guide you through the process.
In the event that two parents were married when one of them died, the child typically goes directly to the living parent. Grandparents and other relatives of the deceased parent may formally request visitation rights.
If, after a divorce has already occurred, the parent with full custody dies, then the surviving parent may need to petition the court to obtain custody of the child. Absent any history of child or drug abuse (or any major crimes) or other issues that raise questions about the ability to care for the child, the surviving parent should be able to get temporary custody before eventually getting a formal order from the court. If the surviving parent already shared custody with his or her ex-partner, the process is even more straightforward.
It’s possible that the deceased parent remarried after the initial divorce, in which case there may be a stepparent in the picture. If the stepparent has become close with the child, the custody process can be more complicated. For instance, the stepparent may have already adopted the child. If this is the case, he or she may have just as much right to obtain custody of the child as you do. In fact, he or she may be even more entitled to custody, especially if you previously forfeited your parental rights when the stepparent originally went through the adoption process.
If you did not forfeit your parental rights, you may be able to obtain temporary custody while the court processes your request for full custody. Again, relatives of the deceased parent can request visitation rights.
It may be the case that you were never married to the deceased parent. If so, you may need to go through some extra steps. For instance, the court may request that tests be administered to determine that you are for sure the biological parent. If you are the biological parent, your chances of getting custody increase. Absent extenuating circumstances, courts tend to think that a child should be with his or her biological parent.
Both Parents Pass
If both parents pass away, the child may be left with legal custodians already chosen by the deceased parents. Grandparents are usually the first choice for custody, followed by siblings and then other distant relatives, if no others are available. In the end, the court will make a decision that is in the best interest of the child.
If no relatives are alive (or able) to take care of the child, friends of the family might be able to take custody, however in such circumstances, the court will be more thorough in its review of the person petitioning for custody. Finally, if neither relatives nor family friends are available, the child will be left under the care of the state.
If you are in one of the above situations and live in South Carolina, please contact Darrell Beckham. He has extensive experience working through custody issues and will help you achieve your goals.