Death is not something you often like to think about; but when you have children—especially if you are an unmarried or divorced parent—then you may have wondered "What will happen to my child if I die?" If you are a divorced, non-custodial parent, then you may be curious if a third party can step-in and take custody of your child if the custodial parent dies. Each of these are important questions to consider.
Who Gets Custody if Both Parents Die? – Godparents, Guardians & "Interested Parties"
In the typical scenario when one parent dies, the other parent will have or receive legal custody. But what happens to a child if both parents die?
If both parents die, or the parent who dies is single and there is no identifiable other legal parent, then we can hope one or both of the parents’ wills contains directions on who should take guardianship of the child.
Though many people select godparents while the child is young, it should be memorialized in writing if the parent(s) elect the godparent to assume legal custody. Absent unique circumstances, the courts will honor the wishes of parents as expressed in their will(s) or other valid, legal instrument as to guardianship.
If no legal documents exist, then third parties with “legitimate interests” in the child can petition the court for custody.
Who Gets Custody When the Living Parent Is Unfit?
Who gets the child if the custodial parent dies? What if the child’s parents are divorced and the other parent is still living, but has little, to no relationship with the child? Typically, the court will still award custody to the other parent due to the fundamental liberty interests in parenting one’s own child established by the Supreme Court in 2000.
But what if the other parent is unfit?
Under Virginia law, if a third party with interest believes that the child’s other parent is unfit and the third party’s guardianship would be in the child’s best interests, then they should petition the court for custody. However, establishing “unfit” is not an easy task and the courts favor placing children with their legal parents. Nevertheless, examples of unfit may include:
- A history of domestic violence or abuse;
- A criminal history or a pattern of illegal conduct;
- Alcohol or drug abuse;
- A history of child neglect or abuse;
- General instability; and/or
- A general lifestyle detrimental to the health and well-being of the child.
Whether you believe you are a third party with a legitimate interest in a child or simply want to make arrangements for the guardianship of your child, in the event something happens to you, you should contact a knowledgeable family law attorney right away. Contact DiPietro Family Law Group today to schedule a consultation with a caring professional at (888) 530-4374.