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

Hossein Berenji, Feb 22, 2023

The death of a parent or guardian can be devastating for a child. In most cases, stability and continuity are in the child’s best interests. For that reason, it is presumed that the child’s other biological parent will assume sole custody after the death of a parent or guardian in California.

California Family Code §3010(b) states if one parent is dead, refuses to, or is unable to take custody or abandons a child, the other parent is entitled to custody. Therefore, the other parent can assume sole custody if a parent dies.

However, there could be situations where the other parent is unfit or cannot take custody. If so, there are procedures in place to grant child custody to a legal guardian.

Petitioning for Guardianship of a Child After the Death of a Parent in California

Another person can petition the court for legal custody of a child after the death of a parent or guardian. In many cases, the person petitioning for guardianship is a family member.

Individuals that might petition the court for guardianship include:

  • Adult siblings
  • Grandparents
  • Aunts and uncles
  • Family friends
  • Any adult the court finds fit and proper to care for the child

A legal guardian has the same responsibilities and duties as a parent. They must care for the child, provide for the child’s needs, and make decisions for the child. A judge can require a legal guardian to file periodic reports with the court if they find cause to monitor the child’s care.

What Happens If the Surviving Parent Objects To the Appointment of a Guardian?

California Family Code §3041 requires the judge to find that giving custody of a child to their parent would be harmful to the child before granting custody to a legal guardian. There must be clear and convincing evidence that parental custody would harm the child. Clear and convincing evidence is a medium level of proof that requires you to prove it is substantially more likely that the allegations are truer than untrue.

Judges typically decide custody matters based on the best interests of the child. Factors the judge must consider include:

  • The child’s welfare, safety, and health
  • Evidence of domestic violence or abuse
  • A parent or guardian’s history of substance abuse
  • The child’s relationship and contact with each parent

A judge might consider other factors when deciding custody cases. Other factors could include, but are not limited to:

  • The person’s ability to provide for the child, including physical care and financial needs
  • The stability and safety of the home environment
  • Other people who live in the home
  • The reasonable preferences of a child, if the judge finds the child is mature enough to make a decision
  • The child’s needs, including any special health or educational needs

The “best interests of the child” determination can be complicated. There must be sufficient evidence to prove that the court is justified in denying custody to the child’s parent. Working with a Beverly Hills child custody attorney is the best way to prepare a solid case to present in court.

Even if the court grants custody to a legal guardian, the surviving parent might retain visitation rights. The court can order a visitation schedule so the child can continue a relationship with the surviving parent. Furthermore, the court can order the parent to pay child support payments to the child’s legal guardian.

How To Protect Your Child If You and Your Child’s Other Parent Die

It is difficult to consider not living to watch your child grow up. However, parents should plan for the unthinkable by having an estate plan.

If the child’s other parent is deceased, a parent can name a legal guardian in their Will. Typically, the court grants the parent’s appointment of a guardian unless someone challenges the appointment.

A parent can also set up a trust and name a trustee to manage the child’s inheritance until the child is an adult. There are several options a parent can choose when providing for their children. A parent can select a different person to serve as trustee and guardian, or name the same person to serve in both roles.

Working with a lawyer is one of the best ways to ensure that your estate documents are legally enforceable and that your wishes can be carried out after your death. If you believe your child’s other parent is unfit to have custody after your death, talk with a Beverly Hills family law attorney to discuss your legal options.

Contact a Beverly Hills Child Custody Lawyer Today

If you’re going through a divorce, you need a strong team on your side fighting for your rights. Call Berenji & Associates Divorce Lawyers today to know how we can assist you.

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