The obituary stated that Carol Smith was survived by her two children, Peter and Cindy. What it didn’t mention was the difficult situation Peter, Cindy, and their loved ones faced. During her divorce from the children’s father, the court granted sole physical custody to Carol. Where the children would live, and with whom, could be uncertain now that Carol is gone. When a custodial parent dies, some hard decisions may lie ahead.
The Parenting Plan
When children are involved, divorcing couples must prepare a parenting plan before the divorce can be finalized. Some of the issues they negotiate include:
- Whether they will have joint or sole legal custody. Legal custody refers to making important decisions about the children’s health, education, and welfare.
- Whether they will have joint or sole physical custody. Physical custody refers to where the children will live and spend their time.
For example, Carol Smith had sole physical custody of the children but shared legal custody with their dad, Greg.
The Surviving Parent’s Rights
California Family Code §3010(b) states:
“(b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child.”
However, remember that California family law judges always try to put the best interests of the child first. Sometimes the court considers the surviving parent to be unfit, or the noncustodial parent simply cannot take the children. In these cases, other arrangements will be made.
Finding a New Guardian
In situations where the surviving parent is unable or unwilling to take custody of the children, courts may consider granting custody to:
- Step-parents, especially if the step-parent adopted the children;
- Relatives of the children or their parents, including grandparents; and
- Family friends.
When there is no other alternative, the kids may go into foster care after their custodial parent passes away.
Two final issues may occur when deciding parenting issues after a custodial parent dies. The deceased parent may have left a Will stating whom he or she wants to care for their children. A Will generally cannot be the final say on where the children live. However, courts may take the deceased parent’s finals wishes into account
Family law judges also may let the children state where they would like to live. This information could affect the judge’s decision, depending on the children’s maturity and age.
It’s Crucial to Move Quickly After a Custodial Parent Dies
Deciding where children will live can help provide stability at a time when they need it most. The attorneys at The Law Offices of Judy L. Burger are well-versed in divorce and child custody issues. Judy Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Southern California Coast.