Child Custody After the Death of a Parent

child playing in a field
Nov 1, 2023 | Content

If your spouse, significant other, or ex-paramour passes away, you may receive custody of any surviving children you two have together. The default rule is for the surviving parent to care for the children, but Georgia courts only do this if it is in the children’s best interests. If the surviving parent does not want to or cannot care for the children, the judge may decide to give custody to a family member, such as an aunt or grandparent, who requests this.

Determining child custody after the death of a parent can cause many issues to surface. If you are in this position, you are likely grieving and riddled with questions about what to do next. Our legal team is here to support and guide you through this time. Reach out to connect with a trusted family attorney today.

Who Gets Custody When a Parent Dies?

Under Georgia family law, if a parent dies, the surviving parent may receive full custody of the children, but this is not always the case. To make a decision, the court will consider the children’s best interests in the situation. For example, the judge will often look at the following factors:

  • The child’s preferences (this depends on their age);
  • What the home environment is like;
  • The support systems available in the surviving parent’s community;
  • The surviving parent’s ability to adequately provide for the child’s needs;
  • The presence (or absence) of substance use or significant mental health concerns in the surviving parent’s home.

The family court makes a custody decision based on what would support the best interests and welfare of the child or children involved. The wishes laid out in the deceased parent’s will typically will not impact the court’s decision. If parents want to ensure their custody wishes are honored even after they are gone, they should consider talking to a seasoned attorney.

When Would the Surviving Parent Not Get Custody After a Parent’s Death?

As mentioned above, after a parent’s death, the default rule is for the parent who survives to bear the responsibility of caring for the children. But some situations may cause the judge to decide against this.

Significant substance use or physical abuse problems may cause the judge not to grant custody to the surviving parent. The judge may also award custody to a third party if the parenting plan expresses a desire to have a relative be the children’s guardian if one parent dies.

Making child custody decisions after a parent dies can be challenging for families to weather. Our team can help you understand your rights during this process.

Let Our Child Custody Attorneys Help After the Death of a Parent

If your co-parent dies, the law may put you in charge of caring for your children. But if the court does not think this arrangement is appropriate, it may decide to give custody to a third party instead. You can defend your right to be the children’s primary caregiver by arming yourself with the necessary legal knowledge.

A seasoned family attorney from the Atlanta Divorce Law Group is best positioned to advocate for you. We can provide personalized answers and advice if you have legal questions about your parental rights or what to do next. Contact our firm for help determining child custody after the death of a parent.


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