Child Custody After Death of a Parent

dad holding sad son

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When a custodial parent dies, the non-custodial parent and other family members may be concerned about who will receive custody of the child. Those who want to help should learn about the proper procedures to follow with your local family court to formally obtain child custody. The following information about child custody following the death of a parent can help you prepare.

Custody After a Parent Passes Away

The question of who should receive custody of a child when a custodial parent dies is a difficult one. Here are some possible candidates who may be willing to serve as guardians:

  • Non-custodial parent, if paternity has been acknowledged
  • Grandparents
  • Other relatives, such as aunts, uncles or cousins
  • Family friends such as godparents or neighbors
  • The state

That last one stands out as the least favorable option. However, if there are no alternatives, the child could become a ward of the state. When this happens, the child enters the foster system. Unfortunately, there is no way for concerned family members to choose the specific foster home or even the location.

In most cases, visitation can be established through the regular channels, but relatives who wish to pursue visitation may wish to consider stepping into the role of guardian instead.

This would prevent the need for foster care.

Concerned family members may also want to know whether an adoption through the foster system is possible. Technically the answer is yes, but many foster children are never adopted. Again, this is a compelling reason to volunteer as a guardian.


As mentioned above, the non-custodial parent may be entitled to child custody if a custodial parent dies. However, for this to happen, paternity has to have been established.

A formal acknowledgment of paternity requires one of these two:

The biological father can also initiate paternity testing following the death of the custodial parent. States have specific procedures for acknowledging paternity of a child. For information about what to expect when you initiate paternity testing, refer to your state's child custody guidelines.

Third-Party Custody

The courts will also consider third-party child custody, such as making a family friend the child's legal guardian. This is concerned when a custodial parent dies, and any of the following circumstances are present:

It is up to the courts to decide whether to grant third-party custody after a custodial parent dies. However, concerned individuals wishing to be considered should step forward immediately and let the court know of your interest, your existing relationship with the child, and any relevant experience or qualifications following the death of a parent.

A Word From Verywell

It is very unfortunate for a child and all involved parties when a custodial parent dies. It's equally difficult for loved ones to figure out who should obtain custody of a child whose ​custodial parent has died. For more information about child custody after death, refer to the child custody guidelines of your state or speak with a qualified attorney in your state.

2 Sources
Verywell Family uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. Child Welfare Information Gateway. Children's Bureau/ACYF/ACF/HHS. The rights of unmarried fathers.

  2. Child Welfare Information Gateway. Children's Bureau/ACYF/ACF/HHS. Standby guardianship.

By Debrina Washington
Debrina Washington is a New York-based family law attorney and writer, who runs her own virtual practice to assist single parents with legal issues.