If a Mother Dies, Does the Father Automatically Get Custody?

Divorcing or separating parents write a parenting plan and visitation schedule to address how they'll raise their child. It's also wise for them to consider what should happen to their child if one parent were to die.

Who gets custody if a parent dies? You may be facing this question now due to a terminal illness (yours or the other parent's). Or you may simply be wondering what would happen to your child if you were in an accident or received a new diagnosis.

Of course, no one can eliminate all uncertainty from life, but you can make a plan that's in your child's best interests.

What happens when a parent with sole custody dies

It's common for one parent to have sole legal custody (meaning they make major decisions for their child), sole physical custody (meaning the child lives with them), or both.

A parent who doesn't have custody is still a parent. They have rights and responsibilities regarding their child. If the custodial parent dies, the noncustodial parent's role will likely change.

If a custodial parent dies, one possibility for the noncustodial parent is that they increase their involvement. Maybe they originally gave up custody simply because they live far away. If so, the death of the custodial parent may provide a reason for them to begin living with their child. They may move into the child's home, or the child may move into theirs. If this needs to happen gradually, they could ask the court for a step-up parenting plan.

But another possibility is that a court may not allow the surviving parent to be their child's primary caregiver. If they're an unfit parent, the child may need to be placed with a grandparent, aunt or uncle, or other family member who can properly care for them, or else go through the foster care system to be placed with strangers.

Asking "I have sole custody. What happens if I die?" can be painful. But there may be a straightforward answer, and planning for it is worthwhile.

Unmarried father's rights if mother dies

A biological father should legally establish his paternity, often involving a DNA test. In most places, paternity itself means he's a parent. (Though in some places, like Georgia, he must also prove it's in the child's best interest to name him the legal father.) He has rights, including the right to go to court to seek custody of his child (though the court doesn't have to award custody to him).

It's good to establish paternity as early as possible in the child's life. This helps to plan for the question of who gets custody if mother dies.

It may be hard for a man to get custody if he merely claims he's the father. He's a legal stranger to the child if he hasn't established paternity and hasn't had an active role in the child's life. He'd begin the custody process by establishing his biological paternity or proving how he's cared for the child.

He isn't necessarily entitled to live in the house that the mother lived in. He can do that if she owned the house and he inherits it from her; if the owner agrees to rent it to him; or if there's some other arrangement written into a trust (for example, the mother put the house in her child's name with the hope that the father will live there too).

Similar considerations apply to an unmarried mother's rights if the biological father dies. Someone who gives birth is automatically recognized as the legal parent of their child and usually automatically has custody. But if a court once gave custody to the father and he's no longer alive, a mother has the right to go to court to seek it.

Because they aren't married, she doesn't inherit his property unless he wrote a will or other valid instructions saying so. His child may inherit his property depending on local law.

Stepfather rights if mother dies

You may be able to become a legal parent to your partner's child. The way to do this is a stepparent adoption (if you're married) or a second-parent adoption (if unmarried).

Adopting your partner's child is likely easier while they're alive so they can consent to the adoption and participate in the process.

If your spouse dies before you adopt their child, you'll lose your stepparent status. You may still be able to adopt, but the legal process may differ from a typical stepparent or second-parent adoption since your spouse won't be involved.

The adoption process will depend on factors like:

• Your history as a parental figure to this child
• The consent and participation of any surviving parent (e.g., a known biological father), or anything else that may affect the child's legal availability for adoption
• Whether anyone in the child's extended family contests your adoption of the child or steps up to care for the child
• Local laws that apply to your situation

Leaving property to family members

When a person reflects on the money and property they'd like to leave to family members, it's up to them whether to write a will, what to say in it, whether to change it, and whether to show it to anyone. As long as they live, no one else is entitled to read their will. It's a private document. They might give it to a lawyer for safekeeping.

After their death, the will takes effect. At this point, anyone can see a copy of the will, especially if they might be named in it.

When a parent dies, in addition to what's written in the will, their child may be entitled to:

• Social Security survivor benefits
• Life insurance benefits (if a policy exists and if the child was named as the beneficiary)
• Ongoing child support (to be paid out by the parent's estate)

If there is no will, local laws determine who inherits the estate — often a surviving spouse, minor child or adult child.

The deceased person may have named a beneficiary or successor owner on a retirement or college savings account. If so, the investment company may send the money directly to that person upon request.

Terminally ill parents and custody

Terminally ill parents should speak with other adults about what they want for their child. Have important discussions while you still can. Talking helps you all emotionally process the reality of the illness and imagine how your lives will change.

Consider whether your child is mature enough to be included in some of these discussions. As a child faces their parent's illness and anticipates losing them, they may benefit from knowing who their caregiver will be and where they'll live. Helping them feel more secure creates space for them to deal with their grief and begin to accept the transition. They need to know whom they can lean on.

If the parents were previously divorced or separated and they received a court-ordered custody arrangement, they can return to court to have it updated. A major illness will be considered a change of circumstances that warrants a revision to their parenting plan.

If one parent dies, the surviving parent can approach the court on their own to establish custody after death of parent. The court will likely clarify that they now have sole custody of their child.

Terminally ill parents and guardianship

Guardianship is different from custody. It's for non-parents, and it's often meant to be temporary. A guardian may be responsible for a child's day-to-day care without being empowered to make major decisions about their life.

An adult must consent to serve as a child's guardian. Some local laws require their consent when the parent files an instruction with the court saying they'd like them to be a guardian. Other areas don't need their consent just to register the parent's interest in having them as a guardian, but their consent will be needed later if they're called to serve in that role.

What happens when the custodial parent is hospitalized

A custodial parent's illness may be a reason for their co-parent to increase their parenting time, officially (by receiving a court order) or unofficially.

If the custodial parent has named a nonparent as guardian, the guardian is legally empowered to step in to care for the child while the custodial parent is in the hospital.

It's good to plan ahead, think of whom you'd choose, let them know, put it in writing and file it with the court (or at least give your instruction to your lawyer). Then, when the hospitalization occurs, your plan can go into action.

In an emergency, if you can't be involved in decision-making and you haven't planned ahead, family members may informally step in but without the benefit of legal recognition for their caregiving role. If that doesn't work out, a judge may make and enforce another arrangement to ensure your child's needs are met.

How to name a guardian in a Custody X Change parenting plan

Naming a guardian in your parenting plan is easy with the Custody X Change online app.

Click the parenting plan tab, and select the category death.

You can customize this to fit your situation with Custody X Change.

Then fill in the name of the person you'd like the court to appoint as your child's guardian if that becomes necessary.

You can customize this to fit your situation with Custody X Change.

Print the plan, and sign it with the other parent. Then turn it in to your court to settle your custody case.