Who Gets Custody After The Death Of A Child’s Parents?

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Death is not something you often like to think about; but when you have children—especially if you are an unmarried or divorced parent—you may have wondered, “What will happen to my child if I die?” If you are a divorced, non-custodial parent, you may also be curious if a third party can step in and take custody of your child if the custodial parent dies. These are important questions to consider.

Need a custody lawyer in Northern Virginia or DC? Contact DiPietro Law Group, PLLC today!

Who Gets Custody if Both Parents Die? – Godparents, Guardians & “Interested Parties”

In the typical scenario where one parent dies, the other parent will usually receive legal custody. But what happens if both parents die?

If both parents pass away, or if the parent who dies is single and there is no identifiable legal parent, we hope that one or both of the parents’ wills contain directions for who should take guardianship of the child.

Although many people select godparents while their children are young, this choice should be formalized in writing if the parent(s) intend for 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 documents regarding guardianship.

If no legal documents exist, third parties with “legitimate interests” in the child can petition the court for custody.

Related Resources:

  1. VIDEO: Child Custody & Visitation
  2. BLOG: How to Modify a Child Custody or Visitation Order
  3. BLOG: Custody and Visitation of a Newborn

Who Gets Custody When the Living Parent Is Unfit?

What happens if the custodial parent dies and the child’s parents are divorced, with the surviving parent having little to no relationship with the child? Typically, the court will award custody to the other parent due to the fundamental liberty interests in parenting one’s own child, as 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 surviving parent is unfit and that the third party’s guardianship would be in the child’s best interests, they can petition the court for custody. However, establishing that a parent is “unfit” is challenging, as courts favor placing children with their legal parents. Examples of being “unfit” might include:

  1. A history of domestic violence or abuse;
  2. A criminal history or a pattern of illegal conduct;
  3. Alcohol or drug abuse;
  4. A history of child neglect or abuse;
  5. General instability; and/or
  6. A lifestyle detrimental to the child’s health and well-being.

Whether you believe you are a third party with a legitimate interest in a child or you want to make arrangements for the guardianship of your child in the event of your passing, you should contact a knowledgeable family law attorney right away.

Contact DiPietro Family Law Group online or call (888) 530-4374 today to schedule a consultation with a caring professional.

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