Divorce: If you die, where will your children live?
After your divorce, the judge’s custody order may not be the final word on where your children will live. Yes, circumstances may change and you and your ex may make different arrangements, either by court order or voluntarily. However, what happens if one of you dies? What if the one the Grim Reaper meets turns out 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 no longer has force against either party because the judge cannot make an order against a dead person, nor can that person protect his or her own interests.
This does not mean that the orders regarding the property and debts of the marriage are no longer valid. After all, they were made when both sides were alive and able to tell their side of the story. However, when it comes to custody, visitation and child support orders, the effects of the decree expire once one of the parties is no longer able to comply with the decree due to death.
This is a sobering consideration when parents hate each other to death. Stepparents, grandparents, aunts, or uncles may want to take the children, but they have no right to do so, even if they don’t like the living parent of the children. All the other parent of the child has to do is pick up the children from wherever they are. If the police are called, all they will do is keep the peace while the children’s other parent takes them to his own home.
If there is reason to believe that the other parent is unable to care for the children, a petition for guardianship can be filed. However, even if the judge also personally dislikes the father, he cannot simply take the children away from their living father on that basis. For a guardianship petition to be successful, there must be clear and convincing evidence that the children are in some form of physical or psychological danger if they are left in the care of their parents.
The level of proof required for a conservatorship is stronger than the “best interest” standard that governs your placement during the divorce. The question is not where the children 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 the death of one of the parents worsens when the extended family of the last custodian is hostile towards his former father-in-law. Not only are they grieving the loss of a loved one, but 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 take children away from their living parent. This attempt is often counterproductive. Not only are they likely to lose in court, but they will not endear themselves to the surviving parent by being hostile toward him or her. As a result, children not only lose their deceased parent and extended family, but often find themselves in an unfamiliar environment with virtual strangers when they most need consistency and security.
No one wants to die before seeing their children graduate from high school or walk down the aisle. Meeting our grandchildren is one of life’s rewards that most of us look forward to with gratitude and pleasure. However, life is and has always been unpredictable. The fact that the death of a parent can occur at an inopportune time in a child’s youth is just one of many reasons why divorcing couples should try to keep their relationship cordial and encourage their children. to be an important part of both parents’ lives. It will never be easy for a child to lose one of her parents, but it may make it easier to adjust to the new situation if she is already an important part of her surviving parent’s life.