What happens when a custodial parent dies?

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Written by Elton Jenkins

Elton Jenkins is the founder of Elton Jenkins Law, P.L.L.C. which serves Oklahoma in both Criminal Defense and Family Law matters.

October 20, 2021

Did you know?

Divorce can be a challenging experience that calls for multiple decisions. A difficult situation can be made even more tragic when one parent dies. What happens to the custody of a child if the parent with sole or legal custody dies?

If the custodial parent is terminally ill and there is time to discuss the future of the child, then a peaceful agreement can be made. However, if the custodial parent passes away suddenly and unexpectedly, then the chain of custody becomes a factor.

Who gets the child?

The court system uses many factors to decide who gets custody of the child. Here is the hierarchy that is usually used when deciding the future of the child:

    • Non-custodial parent: When the custodial parent passes away, the non-custodial parent is usually the preferred choice of the courts. However, there may be reasons that disqualify the non-custodial parent, such as a history of abuse or drug addiction.


    • Grandparents: If the non-custodial parent is not able or willing to accept custody of the child, the courts normally look to the grandparents as an option.


    • Other relatives: The next option is any blood relatives such as uncles, aunts, cousins or even an older sibling.


    • Friends of the family: If no other options are available, a friend of the family such as a godparent or neighbor who has an existing and healthy relationship with the child may come forward.


  • The state: The last resort in the chain of custody is the child becomes a ward of the state by being placed in an orphanage or a foster home.

There is a clear process that the courts use to determine who gets the child in the event of the custodial parent’s untimely death. Each case is unique and the court takes into consideration all the specific factors.

If one finds themselves in this unfortunate situation, it is often beneficial to have professional guidance that is experienced in family law matters.

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