Colorado courts always place the best interests of the child as their highest priority in all child custody decisions. When deciding child custody during a divorce, the courts consider a continued close relationship with both parents as in a child’s best interests. Unless a parent rebuts this presumption with evidence of abuse, neglect, or serious addiction in the other parent, the court typically chooses a shared custody arrangement between both parents. Still, one parent is usually the “custodial” parent who has the children for more overnights during the week than the other. But what happens if the custodial parent in the child’s shared custody agreement later dies?
The Death of A Custodial Parent After Divorce
When one parent dies after divorce, the other parent automatically takes custody of the child. Because the parent is a biological parent, this arrangement isn’t a guardianship. The surviving parent takes full custody of the child as their natural parent just as they would if the parents had remained married. The only exception is if the non-custodial parent in the divorce was determined as unfit for primary custody during the initial divorce due to domestic abuse or child neglect.
In some cases, there is no previous known history of abuse or neglect that came to light in court during the parents’ divorce, but another family member seeks custody of the child on the basis that the other biological parent is unfit. In this case, the person seeking custody must bring substantial evidence of abuse, neglect, or serious addiction before the judge in order to have the surviving biological parent deemed unfit to take custody. Evidence could include police reports, reports from child protective services investigations, or sworn testimony and photographic evidence. In the case of substantive evidence that the child’s biological parent is unfit, the court would rule in favor of the other relative seeking custody.
What if the Child’s Parents Were Never Married?
The process of determining child custody after the death of a custodial parent is different if the child’s parents were never married compared to divorced parents. If the unmarried biological parent has already had court-approved paternity testing and was granted shared custody and a child support obligation before the other parent’s death, they would automatically get custody of the child just as a divorced parent would. If the non-custodial biological parent didn’t previously have court-ordered parenting time or shared custody rights, they’d first need a paternity test proving their biological relationship to the child before getting custody.
What If The Other Parent is Unfit or Unable to Take Custody?
If a surviving biological parent is unfit and the court won’t give the parent custody, or the parent is otherwise unable or unwilling to take custody, another family member may seek guardianship of the child after the custodial parent’s death. Often this is one of the following:
- One or both grandparents
- An aunt or uncle
- The child’s Godparents
- A guardian named in the deceased parent’s will
In some cases, the person granted guardianship of the child may then receive the child support that formerly went to the deceased parent from the non-custodial biological parent.
If there is a custody dispute due to multiple relatives seeking custody of a child after the death of a custodial parent, the judge will decide guardianship based on the best interests of the child.
If you have questions about how your death or the death of a divorced co-parent impacts your child’s custody, it’s best to speak to an experienced family attorney in Denver.