Published on:

Custody When the Custodial Parent Dies

It is always tragic when a child loses a parent, but what happens when the parent who passes away is the custodial parent? North Carolina courts must grant custody to someone else, and priority is given to biological parents in most cases.

Awarding Custody After a Death

Parents are allowed to file for custody of their children in most circumstances, but non-parents can only petition for custody if they can show that the parent is unfit. When the parent with primary physical custody passes away, courts generally acknowledge that the surviving parent has a right to gain custody. It does not matter in these cases if the surviving parent had custody when the other parent passed away.

For grandparents seeking court-ordered visitation or custody of their grandchildren, the claim must be filed during an open custody matter between the parents. North Carolina does not allow non-parents to file for visitation otherwise, except in cases of parental unfitness.

McDuffie v. Mitchell

The issue of a grandparent’s right to file for custody and visitation was highlighted in the case of McDuffie v. Mitchell. The maternal grandmother in the McDuffie case filed for visitation of her two grandchildren after their mother passed away unexpectedly.

The parents of the children in this case had divorced in 1997, and the mother had been granted physical custody with visitation to the father. In October 2000, the mother went into a coma and was not expected to recover. The father filed to modify custody on October 17th, and the mother died on October 20th before a hearing could be held. On October 27th, the grandmother filed to intervene in the custody case. While this case was pending, the grandmother also filed a complaint in which she sought custody of the children.

In December 2000, the father was granted custody of the children. The trial court ultimately denied the grandmother’s motion to intervene in the custody case because there was no ongoing action. The court stated that it did not have subject matter jurisdiction in the case.

Despite the father only having sporadic visitation with the children while their mother was alive, the court granted custody to the father after the mother’s passing.

The Court of Appeals affirmed the trial court’s decision. It stated that a surviving parent has a right to custody of their minor children, and that right may only be denied for substantial reasons. A grandparent’s right to visitation relies on an open custody case between the parents or a finding of parental unfitness, and these issues were not present in the McDuffie case. When the mother died, the custody case between her and the father ended. Thus, there was no pending case that would allow the grandmother to file for visitation or custody. For more information, or for help with your particular situation, speak with an experienced family law attorney in Greensboro.