Child Custody

How Does Child Custody Work After the Death of a Parent or Guardian?

The surviving parent and other family members may be worried about who will receive custody of the child after the death of a custodial parent. The Family Code outlines child custody rights of the living parent, and who may request visitation or custody.

When there are family law custody and/or visitation orders in place, and one parent dies, Family Code section 3010(b) states that the surviving parent is entitled to full custody of the child. If there is a reason the parent should not have full custody, for example, they do not exercise their visitation, or are unable to care for the child, a third party would need to file a guardianship request in Probate Court.

Requesting Guardianship

The probate court may appoint a guardian for a child if, for any reason, the surviving parent is not able to meet the needs of the child and such custody would be detrimental to the child under Family Code section 3041. It is important to request guardianship if you are not the custodial parent to ensure the child has safety, stability, and familiarity. A legal guardian is appointed all the same responsibilities to care for the child as a parent would.

Who can request guardianship?

  • The child’s grandparents
  • Any other family member or relative
  • Family friends or neighbors
  • Any adult who the court deems fit to be appointed guardian

Even if guardianship is appointed, the child’s surviving biological parent may still have rights to reasonable contact with the child, if the court permits visitation and they choose to exercise it. Family Code section 3102 also states that the children, siblings, parents, and grandparents of the deceased parent may be granted visitation if it is determined to be in the best interest of the child.

If the surviving parent is unable to care for the child, and no other family members or friends request guardianship, the child could enter the foster system as a ward of the state.

Contact our Experienced Attorneys

The attorneys at Family Law San Diego are compassionate in dealing with matters involving child custody and the loss of a parent and can offer guidance and support each step of the way.