Who Gets Custody of Children If Both Parents Die?

By Claire Gillespie

Updated February 24, 2020

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When a child’s parent dies, generally the surviving (biological or adoptive) parent has sole custody of the child unless there are extreme mitigating circumstances, such as abuse or neglect. There should be no gender bias, so custody of a child after the death of his mother goes to the father, and vice versa. The situation is more complicated if both parents die before the child turns 18. The situation regarding child custody after the death of both parents is affected by whether the parents have wills or not.

When There Is a Will

If a person writes a will before she dies and states who she wishes to become the legal guardian for her child, the court will likely make the position official, unless there is an issue as to why the named person cannot or should not serve. It’s advisable to name an alternate guardian in a will in case the first choice cannot or will not accept the role.

Choosing a guardian for a child is a serious matter. Anybody serving in this capacity should get together with the child’s other parent, if possible, and work together to create a list of possible guardians. Several factors should be considered, such as the child’s existing relationship with the candidate, the candidate’s moral and religious values, her ability to care for the child on a practical level, and whether there are any issues that could interfere with her ability to serve as guardian.

For example, if someone already has young children of her own, she may not have the time, energy or finances required to care for another. Discussing the pros and cons of each candidate will make the decision easier.

A child can have more than one guardian. If the child is very young when his parents die, he might be looked after by a grandparent for few years, then another person might take over the role of guardian when he is older and more active.

When Wills Conflict

In some situations, the parents may have conflicting wills. Each case is judged on its own merits, but generally, the wishes of the last parent to die will be given the most weight by the courts. For instance, if the father dies first, sole custody generally passes to the mother. If the mother then dies, it is the custody provisions in the mother's will that will be considered. But if both parents die at the same time, such as in a road accident, and their wills are conflicting on the issue of custody, the courts may need to step in.

If parents have different guardians named in their wills, a court hearing is required to determine who is the best guardian for the child. The judge will hear evidence from both potential guardians and base his decision on what he deems to be in the child’s best interests.

Read More: Can People With Legal Guardianship Take Children Out of State?

When There Is no Will

If parents die without leaving a will, it is up to the court to decide who will become the child’s legal guardian. It's important to be aware that grandparents' rights after the death of a parent are not automatic. Nor will an aunt, uncle or older sibling automatically be appointed guardian of a child; the judge will decide who is the best person for the role based on evidence provided during a hearing.

In many cases, the court awards custody to the person who is most closely related to the child. If there are no close family members, the courts may look to very close family friends. But any adults who have an existing close relationship with the child can nominate themselves as the child’s guardian.

If there is a custody dispute following the death of a child's parents, for example, if the child goes to live with her grandparents against a step-parent's wishes, the court will make a decision based on what is in the child’s best interests. Many factors are taken into account, including where the child will live and what would cause less disruption to her lifestyle and routine.