What Happens with Child Custody When a Parent Dies?

When a parent dies with a child custody order or a pending child custody case, the issue of what happens to the child can be complex. If the parent who passed away was the custodial parent, the non-custodial parent and the surviving family may worry about where the child will go.

No parent wants to consider they may not have the opportunity to watch their child grow up. However, it is always wise to take precautions in case they die while their child is still a minor. If you are not married to your child’s other parent, or you are concerned they may get custody if you pass away, this discussion explains how to prepare for the unexpected and protect your child from an uncertain future.

Some Custody Arrangements Are More Complex than Others

If both parents were actively and effectively coparenting prior to the parent’s death, the issue should be easily resolved. However, if there are questions about the surviving parent’s ability or willingness to take full legal and physical custody of the child, things get complicated.

In many families, it is not uncommon for older siblings, aunts, uncles, and grandparents to step in and pursue custody of the child if they are a big part of their life and have played an instrumental role in their upbringing to this point.

Types of Child Custody

Before exploring the different scenarios that occur when an unmarried parent dies, it is helpful to explain the different types of child custody in New Jersey and across the United States.

Physical custody. Physical custody refers to where the child lives after the parents separate or divorce. If the child spends equal time residing with both parents, that is called joint or shared physical custody.

In many cases, one parent has sole or primary physical custody, but the child may still see and spend time with the other parent. Some parents prefer this arrangement because they believe it offers more stability for the child.

Legal custody. Legal custody refers to the parent’s right to make important decisions for the child’s health and well-being, including choices about their education, health care, and religious upbringing.

A parent with sole legal custody can make these decisions without the other parent’s input. Parents with joint legal custody must consult each other and come to a mutual agreement regarding major choices impacting the child.

Because geography is not an issue with legal custody, parents who do not have joint physical custody can still have joint legal custody.

Death of a Custodial Parent

When parents are married, it is usually understood the child will remain in the home with the surviving parent. However, that is not so simple with separated parents, parents who have gone through divorce, or parents who have never been married.

When the custodial parent dies while a custody and visitation order is in place, it is presumed that custody will revert to the non-custodial parent. In this country, biological parents have the presumption of custody over third-party individuals in most cases.

Those parental rights are actually protected under the First and Fourteenth Amendments of the United States Constitution, provided those parents act with the child’s best interests in mind.

If the parents had a fairly amicable coparenting relationship and both parents were equally invested in raising the child, this usually is not a problem. Although the death of a parent is understandably painful for all involved, at least this transition can happen relatively peacefully.

The problem arises when other friends or family members have concerns about the other parent taking custody of the child. They may believe the surviving parent is unfit to raise the child or worry that parent will keep them from seeing the child in the future.

Watkins v. Nelson: A Precedent for Third-Party Custody

The reality is not every parent is capable or interested in parenting their child. Custody disputes between a biological parent and a third-party person are governed by the 2000 case Watkins vs. Nelson.

In this case, the court stated the biological parent presumption can be overcome if a third-party can show: gross misconduct, unfitness, neglect, or exceptional circumstances affecting the welfare of the child. Examples of a parent’s unfitness or misconduct might be a parent who physically abuses the child, neglects their basic needs, has substance abuse issues, or is incarcerated.

Exceptional circumstances might be a grandparent who takes on a parental role. They may take care of the child’s basic needs such as food, clothing, and education; give them emotional support; and provide for them financially. In a legal context, this is known as a psychological parent.

Any third-party individual can be a psychological parent if they fulfill all the duties and responsibilities that come with parenting. It is often a grandparent, stepparent, aunt, uncle, older sibling, or same-sex partner. If the non-custodial parent is not able to parent and there is no third-party available to assume custody, the child will be left to the state’s care.

Who Decides Custody after a Parent Dies?

All custody decisions are made based on the best interests of the child. Unfortunately, the parties involved may not always agree on what that means.

If the child custody order for unmarried parents is not clear about what should happen to a minor child if a parent dies, or if a third party wants to challenge the non-custodial parent’s custody, New Jersey Superior Court will intervene.

According to New Jersey State Law 9:2-5: Superior Court shall have the right, in an action brought by a guardian ad litem behalf of the children, to appoint such friend or other suitable person, guardian of such minor children…remove such guardian, and to appoint a new guardian or guardians…as the circumstances of the case and the benefit of the children shall require.

What Is a Guardian Ad Litem?

A guardian ad litem (GAL) is a person appointed by the court to investigate which solution would be best for the child. GALs are usually mental health professionals or lawyers who are familiar with the complexities of child custody and child welfare.

In the case of a deceased parent, they would investigate the family situation and advise the court on the surviving parent’s overall fitness and if there are any red flags that may compromise their ability to parent. The GAL may dig deeper to learn about the child’s relationship with other family members, in particular a third-party person seeking custody.

Most important, the GAL meets with the child to learn their wishes. Cooperation with a GAL is required by law. After conducting their investigation, the GAL makes their recommendation to the court, either orally or in writing. The GALs report for the court is sealed and not accessible to the parent or anyone else.

The court considers the recommendation and usually follows it, but is not legally required to do so.


When parents share physical and/or legal custody of a minor child and one of them dies, the surviving parent is most likely to get custody. However, if the surviving parent does not want to parent or cannot for any reason, custody matters get more complex. If a grandparent, other relative, or close family friend wants custody, the courts will confirm it is in the child’s best interests before awarding custody.

The best way to protect your child and their future in the event of your passing is to meet with a child custody lawyer and take the appropriate legal steps to put a plan in place for your child’s care.

Morristown Child Custody Lawyers at Lyons & Associates, P.C. Resolve Difficult Custody Battles for Clients across New Jersey

It is never easy for a child when they lose a parent. But a bitter custody battle can add undue stress and worry to an already sad situation. The Morristown child custody lawyers at Lyons & Associates, P.C. can protect your child and secure their future. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.