Child Custody After the Death of a Parent

 

                                                               By:  Ed Adams  l0/l3/09

 

 

 

Objective:  The objective of this article is to acquaint readers with the judicial view concerning child custody when one parent dies and there are other interested parties who are concerned for the child/children.

 

Summary:  When one parent dies, usually child custody is not an issue.  The other parent takes over and the family goes on.  However, there are some cases when a third party files a petition for whatever the reason.  This article seeks to explain what can happen in these instances.

 

Child custody upon the death of one parent, can become an issue when a petition is filed by a third party.  Usually the third party is a relative such as a grand-parent, uncle, or aunt.

 

The law in Georgia, as in most states, says that upon the death of either parent, the survivor is entitled to the custody of the child/children, provided that the Court upon petition may exercise discretion as to the custody of the child.

 

Case law provides that the court discretion in determining to whom the custody of a child shall be given,  is not free or arbitrary, but should be exercised in favor of the surviving parent unless evidence shows that the interest and welfare of the child would justify overriding the rights of the surviving parent.

 

Generally, the custody rights vested in the surviving parent will not be disturbed unless it is proven that the surviving parent has lost parental powers.  This can be shown by abandonment of the child, cruel treatment of the child, or termination of parental rights for any other reason,  by a court of competent jurisdiction.  Lack of fitness of the surviving parent, if proven, would also warrant loss of custody.

 

Another issue that occurs regularly happens when the custodial parent leaves a will designating who should have custody.  The rights of  a surviving parent to custody of a child cannot be divested by provisions in the will of the deceased parent.

 

Case Example:  Some years ago I represented a client who was dying of cancer.  Her husband, the children's father, had left the marriage and was living with his girlfriend.  He and she drank excessively by the children's report and the ex-wife's report.  The children's uncle (mother's brother) wanted the children after their mother died.  The uncle petitioned the court and lost.  The court, even under these circumstances, was unwilling to terminate the parental rights of the children's biological father.  To my knowledge, the father married the girlfriend, kept and raised the children, and is drinking less.  Sometimes, raising children has a positive effect on negative parental behavior.

 

In summary, unless it is proven conclusively that it is in the children's best interest and welfare, the courts are reluctant, as they should be, to disturb the parental rights.