What Are the Rights of a Non-Custodial Parent when the Custodial Parent Dies?
If a parent with sole
custody appoints a guardian for a child in a will and then passes away, what
ability does the non-custodial parent have to override the directive?
when a parent is given sole custody of a child, the non-custodial parent does
not lose their parental rights. As such, a non-custodial parent who
out-lives an ex-spouse will generally regain custody of the child. That
said, if the sole custody parent has concerns about the other parent’s ability
to care for the child, that parent should articulate those concerns in his/her
will. It is unlikely that a court would override the non-custodial
parent’s rights, but the custodial parent should at least voice his/her
There are a
few exceptions to the general rule that non-custodial parents regain custody of their children upon the death of the custodial parent. For example, if a court has terminated a non-custodial
parent’s rights due to abuse or neglect, the court will honor the appointment
of someone other than the ex-spouse as guardian. Also, if a former spouse
survives the custodial parent and either abandons the child or is simply unable
to care for the child, the court will also appoint a guardian for the child. In
these circumstances, courts give great deference to a custodial parent’s Will
in determining whom to appoint as the guardian. For this reason, parents
should always name a guardian for their children in their wills.