Child Custody After the Loss of a Guardian
The loss of a custodial parent or guardian can have devastating effects on a child. During this
emotional and tumultuous time, loved ones and close family friends want to support the child
and provide as much stability as possible. But who ultimately gets custody after the loss of a
guardian?
emotional and tumultuous time, loved ones and close family friends want to support the child
and provide as much stability as possible. But who ultimately gets custody after the loss of a
guardian?
If there is a surviving parent, California family law states that he or she is entitled to full custody
rights. However, there might be valid reasons that the surviving parent should not have full
custody, such as the parent:
- Did not exercise prior visitation rights
- Presents a danger to the child
- Is unable to care and provide for the child
- Is unwilling to bear responsibility for the child
- Has a residence that presents an improper or inadequate living arrangement.
In cases where the non–custodial parent is unfit to be granted custody, another interested third
party, usually a close relative or family friend, can file a guardianship request in probate court.
Who can request guardianship?
Any adult who is able to properly raise a child can request to become the child’s legal guardian.
Usually, grandparents, close relatives, neighbors, other family members, family friends, or other
caring adults with a vested interest in the child’s life, such as teachers, are the ones who
request guardianship. The probate court determines whether the adult requesting guardianship
is fit to fulfill all the duties and responsibilities usually fulfilled by a parent.
It’s important to remember that even if the court determines that the surviving parent should not
have legal guardianship, he or she could still have visitation rights if continued contact is in the
child’s best interests. Similarly, the siblings, grandparents, and other family members of the
deceased parent might also receive visitation rights.
Usually, grandparents, close relatives, neighbors, other family members, family friends, or other
caring adults with a vested interest in the child’s life, such as teachers, are the ones who
request guardianship. The probate court determines whether the adult requesting guardianship
is fit to fulfill all the duties and responsibilities usually fulfilled by a parent.
It’s important to remember that even if the court determines that the surviving parent should not
have legal guardianship, he or she could still have visitation rights if continued contact is in the
child’s best interests. Similarly, the siblings, grandparents, and other family members of the
deceased parent might also receive visitation rights.
Becoming A Ward of the State
Unfortunately, in cases where the living parent cannot care for the child and no other interested
parties seek to become the child’s guardian, the court might choose to place the child in the
foster system as a ward of the state.
parties seek to become the child’s guardian, the court might choose to place the child in the
foster system as a ward of the state.
How to Protect Your Child’s Best Interests
Although it’s difficult to think about not being around to care for your child, it’s important to have
a plan in place to ensure that the right person of your choosing gets custody after your death. A
detailed will and estate plan can give you peace of mind that your child’s rights and assets will
be protected and that your specific wishes will be followed with regard to custody. Appointing a
guardian that you trust is one of the most loving things you can do and could help relieve some
of the stress on those you leave behind during a very emotional time.
a plan in place to ensure that the right person of your choosing gets custody after your death. A
detailed will and estate plan can give you peace of mind that your child’s rights and assets will
be protected and that your specific wishes will be followed with regard to custody. Appointing a
guardian that you trust is one of the most loving things you can do and could help relieve some
of the stress on those you leave behind during a very emotional time.
We Can Help You Safeguard Your Child’s Future
At Lonich Patton Ehrlich Policastri, we specialize in both family law and estate planning, so we
have years of experience in helping parents make sure their family’s futures are well protected.
Call us today at 408-553-0801 for a free consultation. We understand how important family is,
and we would love to speak with you about what you need to provide the best for yours.
have years of experience in helping parents make sure their family’s futures are well protected.
Call us today at 408-553-0801 for a free consultation. We understand how important family is,
and we would love to speak with you about what you need to provide the best for yours.
Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Virginia Lively
Virginia Lively joined Lonich Patton Ehrlich Policastri in 2016, and has practiced family law exclusively since 2012. In 2018, Ms. Lively became a Family Law Specialist as certified by The State Bar of California Board of Legal Specialization. Her work with clients throughout the Bay Area has demonstrated her expertise in divorce, domestic violence, and spousal and child support as well as tax planning and litigation.
