What happens to the children when custodial parent dies?

Question

My step children's mother died and she had primary physical custody of the children. Now that she has passed do the children automatically go to the father? The grandparents are claiming they are legal guardians--Can this be without any legal documents? How can my husband secure custody? We consulted an attorney that stated we didn't need to petition anything because he is the natural father. But I don't want to be blindsided with any surprises. Any Advice?

Answer 1

Unless there was a will and/or an ammendment in the final court papers of the divorce stating that the grandparents would become legal guardians in the case of the children's mother passing away, or their father gave up legal parental rights, or if he was found by the court to be an unfit parent, there would be no reason why the father would not gain legal custody of his children.  If he is their natural father and none of the above was found to be true, then he will maintain parental rights of his children.

Answer 2

Usually in that situation ,the children do go to the father .They will look at his life,job,why he did not have custody to begin with.If the father is fit and can take on the responsibility they will go to him ,if not they do look at the grandparents on both sides.

Answer 3

If they say they are the legal guardians, then your husband would have had to be notified before hand when this decision was made.

So he just has to sit with the children and discuss this with them.

Afterwards take it to a family court mediator.

If the grandparents want custody then the judge will ask them to show just cause as to why they oppose your husband's being the custodial parent.

Answer 4

The lawyer is right.  The paternal father is the next in line to get the kids.  After that, it depends on state laws.  The state I live in particular doesn't recognize grandparents as a custodial authority in the child's life.  So chances are the kids would go to you provided you adopted them.  However, I'm sure that case there would be a court battle to fight with the grandparents over that one.

Answer 5

Your husband would be the custodial parent.  The grandparents can always take the matter to court, unless they have proof he is unfit, they lose, but they have the right to get visitation privileges.