Divorce: If You Die, Where Will Your Children Live?

After your divorce, the judge’s custody order may not be the last word on where your kids will live. Yes, it is possible that circumstances will change, and you and your ex will make different arrangements, either by court order or voluntarily. However, what happens if one of you dies? What if the one who meets the Grim Reaper happens to be the custodial parent?

The judge loses his authority over a divorced couple and their children if one of them dies. The divorce decree is of no more force against either party because the judge cannot enter an order against a dead person, nor can such a person protect his or her own interests.

This isn’t to say that orders regarding property and debts of the marriage aren’t still valid. After all, they were made when both parties were alive and could tell their sides of the story. However, when it comes to custody, visitation and child support orders, the decree’s effects are terminated once one of the parties is no longer able to comply with the decree by reason of death.

This is a sobering consideration when parents hate each other’s guts. Step parents, grandparents, aunts or uncles may want to take the kids, but they have no rights to do so, even if they don’t like the children’s living parent. All the child’s other parent has to do is pick the kids up from where they happen to be. If the police are called, all they will do is keep the peace while the children’s other parent removes them to his own home.

If there is reason to believe that the other parent is incapable of caring for the kids, a guardianship petition can be filed. However, even if the judge also personally dislikes the parent, he cannot just take the children away from their living parent on that basis. For a guardianship petition to succeed, there has to be clear and convincing evidence that the kids are in some kind of physical or psychological danger if they are left in the care of their parent.

The required level of proof for a guardianship is stronger than the “best interest” standard that governs their placement during the divorce. The inquiry isn’t where the kids would be better off, but is limited to the question of whether their other parent is capable of meeting their basic needs for food, clothing and shelter.

The situation surrounding a parent’s death is made worse when the extended family of the late custodian is hostile towards their former in-law. Not only are they grieving the loss of a loved one, they also face a future of little or no contact with another important part of their family.

The reaction of grandparents, aunts or uncles may be to try to get the children away from their living parent. This attempt is usually counterproductive. Not only are they likely to lose in court, but they are not going to endear themselves to the surviving parent by being hostile towards him or her. As a result, the children not only lose their deceased parent, and his or her extended family, but frequently find themselves in an unfamiliar environment with virtual strangers when they are most in need of consistency and security.

No one wants to die before they see their children graduate from high school or walk down the aisle. Knowing our grandchildren is one of life’s rewards that most of us anticipate with gratitude and pleasure. However life is, and has always been unpredictable. The fact that a parent’s death could occur at an inopportune moment in a child’s youth is just one of the many reasons that divorcing couples should try to keep their relationship cordial and encourage their kids to be an important part of both of their parents’ lives. It will never be easy for a child to lose a parent, but it could make the adjustment to the new situation easier if he is already an important part of his surviving parent’s life.