Custody After Death

I believe that you can designate a custodian for your child in your will, in the event of both biological parents’ deaths. But custody would automatically go to the other parent unless their parental rights have been removed.

Yes, custody goes to the surviving parent unless their rights have been removed due to something like child abuse, etc. My husband’s ex passed away in July. Before her death, she did her best to designate their SF as their custodian. Her lawyer told her she could not unless he signed away his parental rights, so she tried to get him to do that, which he refused to do. We now have custody of his two girls.


What if there is an agreement between the parents to have custody given to a third party? In my case I want to give my momma legal custody and my current husband physical custody with the current visitation schedule in place. I have talked to my son and this is what he wants. He’s 13. My ex is not financially or responsible enough to have full custody. I have had a lawyer tell me that if I get an agreement to that effect from my ex, this arraingement is possible. I do not think there would be too much resistance from my ex, but anything is possible from him.

If the biological parents agree that even after divorce, in the event of death, a third party would have custody, I think that would stand. But the circumstances must be specified and clear to all parties involved.

tribotina - you should also make arrangements in the event that something happens to your mother prior to your son turning 18…

good point stepmother… I will do just that. Thank you

Thanks for the responses.

You are free to insert whatever provisions you wish into a parenting agreement. However, the remaining biological parent will likely contest this in the even of the death of the other parent, and it may not be upheld. When it comes to custody it is hard to plan for every future possibility.

Helena M. Nevicosi
Attorney with Rosen Law Firm

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If a parent has sole physical and legal custody of a child can they have the below statement incorporated into the parenting agreement?

“In the event of Mother’s death, full legal and physical custody of child shall be retained by [insert name of Mother’s designee].”