Childhood bereavement is more common than many people realize. Approximately 1 in 11 kids will lose a parent or sibling before reaching the age of 18. Thinking about the possibility that your child will have to go through part of their childhood without both parents can be disheartening.
However, knowing what might happen in this type of situation can help you plan for this possibility to protect your children. Here’s what you need to know about child custody after the death of a parent or guardian.
Rebuttable Presumption in Favor of the Surviving Parent
When one parent dies, New Jersey law generally begins with a presumption that the surviving parent should assume custody. This often applies when the parents were successfully co-parenting, and both were actively involved in the child’s life.
However, that presumption does not apply in every situation. The surviving parent does not automatically receive custody if:
- The deceased parent had sole legal and physical custody under a Superior Court order
- The parents were living separately at the time of death
- The surviving parent had never been awarded joint or partial custody
In these cases, custody does not transfer by default. Instead, the surviving parent must file a formal custody application with the Superior Court and obtain a court order or judgment granting custody.
Until the court issues that order, the surviving parent does not have legal custody, even though they are the child’s biological parent.
Right To Request Custody
After a parent or legal guardian dies, the surviving parent is not the only person who may request custody. The court may consider petitions from other individuals who have a significant relationship with the child, including:
- Grandparents
- Adult siblings
- Other relatives
- Close family friends
- A guardian ad litem appointed by the court
Anyone seeking custody over the surviving parent faces a high legal threshold. To overcome the presumption in favor of the surviving parent, the requesting party must show that custody with that parent would be inappropriate.
The court may consider evidence that the surviving parent:
- Is unfit to care for the child
- Abandoned the child or had little involvement in their life
- Engaged in gross misconduct
- Created exceptional circumstances that would harm the child
In some cases, a non-parent caregiver may argue they should be recognized as a psychological parent based on their long-term role in raising the child. If custody is not granted, the court may still consider granting visitation rights if it is in the child’s best interests.
The Best Interest of the Child Standard
In child custody cases, New Jersey courts consider what is in the child’s best interest by considering factors such as the following:
- The child’s interaction and relationship with the parent and the proposed guardian
- Any history of domestic violence
- The child’s physical needs
- The child’s safety
- The stability of the proposed home environment
- The quality of the child’s education
- The proposed parent or guardian’s employment responsibilities
- The age and number of children in the home
- How close the child’s home, school, and neighborhood are to the proposed environment
- The child’s preference
An experienced child custody lawyer can evaluate your situation and explain how the law might impact your case.
Schedule a Free Consultation with a Monmouth County Child Custody Lawyer
Worrying about child custody after the death of a loved one in New Jersey can be overwhelming. An experienced attorney from The Law Office of Jennifer J McCaskill, LLC can explain what happens with child custody if a parent or guardian dies and whether you can seek a formal custody or visitation order.
These cases often depend heavily on the unique circumstances of the case. Call us today for a confidential consultation with a Monmouth County family law attorney.
To learn more and get the help you deserve, call The Law Office of Jennifer J. McCaskill, LLC, our divorce & family law firm in Red Bank. NJ is ready for anything. Call us at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.
