QUESTION
If custodial parent dies, living parent lives in different state, who gets custody?
Asked on Jul 28th, 2013 on Child Custody - New Jersey
More details to this question:
Mother died. My husband in in active military duty in Virginia. Who gets custody? Support order and support always paid. Visitation when able. Temporary custody given to aunt.
6 ANSWERS
The living parent should step forward and seek his rightful role as the sole remaining parent.
Answered on Jul 30th, 2013 at 12:35 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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If he wants it, he should get custody of his children.
Answered on Jul 30th, 2013 at 12:35 AM
Divorce & Family Law Attorney serving Salt Lake City, UT
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Utah Family Law LC
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I am a Utah attorney, so let's assume that this is a matter where Utah has jurisdiction. Where to unwed parents have an order from a court establishing paternity and an award of child custody, and custody is awarded to the mother, who then dies, the father does not automatically get custody of the child as the surviving parent. The father will likely get custody when he applies for it and in the court because he is a surviving parent who has been paying support faithfully and has been a responsible parent, but if somebody else steps forward trying to get guardianship of the child, or even tries to adopt the child, surviving father could lose the custody battle. The father should step up immediately and file a petition to be awarded custody of the surviving parent.
Answered on Jul 30th, 2013 at 12:34 AM
Alternative Dispute Resolution Attorney serving Ventura, CA
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Zahn Law Office
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Generally, the dad should get primary custody in this situation. When you say temporary custody given to aunt, do you mean by the courts or just that the child is living with aunt at this time?
Answered on Jul 29th, 2013 at 12:47 PM
4 Awards
Most states have a parental preference doctrine which means, barring the other parent being somehow unfit, they automatically should be the custodial parent upon the death of the other. Most likely the aunt had a testamentary guardianship or temporary guardianship. The father can intervene in those proceedings and should receive preference for custody barring some difficult circumstances. Your husband will want to visit with an attorney where the child and aunt live to find out his options.
Answered on Jul 29th, 2013 at 12:46 PM
Mediation Attorney serving Bloomfield, NJ
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Cassandra T. Savoy, PC
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Living parent, usually.
Answered on Jul 29th, 2013 at 12:32 PM