Who Gets Custody to a Child if a Parent Dies

The death of a parent is emotionally difficult, especially for the children. Every parent must have a plan for their children in the event of the parent’s death; however, there are certain concerns if the parents have divorced. When a parent dies, a family can face complex legal issues with custody and visitation. That is why you should have an experienced charlotte family law attorney on your side during this sensitive time. 

No matter who has custody, or whether the deceased parent has a will, the surviving parent will become the natural guardian of the child. A custody order does not terminate the rights of the non-custodial parent and the child can go to them unless found to be unfit. The law in North Carolina specifies what happens to the custody order if one parent dies, who can seek court-ordered visitation, and under what circumstances they can do so. 

What Happens to Custody Orders if One Parent Dies?

The death of a parent terminates the final child custody order and any pending custody actions if the parents are the only parties involved. The courts recognize that the surviving parent has the legal right to custody of their child, no matter their custody position before the death. 

Grandparent Visitation


The law recognizes and protects the rights of the surviving parent to make decisions for their child, including regarding visitation with extended family. Sometimes, the law lets grandparents seek court-ordered visitation with their grandchildren. But, grandparents can’t open a new case for visitation unless they can prove that the surviving parent is not fit such as by abusing or neglecting the child. 

If a court order issued before the death of the parent expressly provides rights to a third party such as grandparents or other extended family members, this part of the custody order continues. In these situations, the surviving parents must allow visitation as the custody order specifies. The surviving spouse can change this by petitioning the court and showing any ongoing contact with the party is not in the best interest of the child. 

Important Considerations for Children with Unmarried Parents

Fathers of any children born out of wedlock do not have a legal right to the child. They must complete the legitimation process before they can have this right. This process offers the father and the child all the rights of legitimacy, which includes the right to custody after the death of the mother. The legitimate father will actively take part in the upbringing of the child. 

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