A widespread concern many spouses or parents have is the custody of the child after the death of the mother. In other words, what will happen to the child if the mother was the custodial parent and dies suddenly? Well, there’s no correct answer to this question. Such cases are very complicated and require professional assistance.

In a typical custody agreement, the custodial parent has more custodial rights than the other parent. Thus, the custodial parent’s death may concern the non-custodial parent or other family members about the fate of the children involved. The following article will discuss the child’s custody after the mother’s death, the factors that affect it, and the duties that come with it.

How To Get Custody of a Child After Death of Mother?

Father got custody of a child after death of motherSince each divorce and custody battle is different, it is not easy for the court to decide who should receive custody of child when parent dies.

Some possible candidates who may be willing to serve as guardians include:

  • Non-custodial father (in case the court acknowledges paternity)
  • Grandparents
  • Other relatives (i.e., aunts, uncles, or cousins)
  • Family friends (i.e., godparents or neighbors)
  • The state


In the case of a mother’s death, the non-custodial father may be eligible to take over the child’s custody. For this to happen, the father will have to establish paternity, and the court needs to acknowledge paternity formally.

For this to happen, you will need to provide one of the following legal documents for child custody if mother dies:

  • Child’s birth certificate with your signature (only valid if you’re the biological father).
  • Acknowledgment of paternity AOP form (as a biological parent, you will need to file this form in court and sign it).

Without a valid AOP (acknowledgment of paternity), a divorced father will not be eligible or have full rights to take over the child’s custody. In this case, the father will have to go to court and prove his paternity. Suppose you didn’t sign your child’s birth certificate. In that case, the court might modify it if you establish your paternity after this certificate’s issuance date.

The biological father can request or initiate paternity testing after the death of the mother. Laws and procedures for acknowledging a child’s paternity differ from one state to another. Hence, it is crucial to refer to your state’s child custody procedures when gathering information about what to anticipate when initiating paternity testing.

As a father, you will guarantee certain rights when signing an AOP. Although they vary with each case, they will typically include the following:

  • The right to be responsible for child’s support
  • The right to have your name on your child’s birth certificate
  • The right to be contacted and consulted in the event of an adoption proceeding.

Nevertheless, signing an AOP does not immediately ensure the right to child’s custody or visitation. This can be a long and challenging process; however, if the father accepts to pay for child support, it shows his willingness to be involved in his child’s life. In such cases, the court can override new guardians’ wishes if they won’t be willing to grant the father the right to visitation. This ensures the child’s chance and ability to build a relationship with his surviving parent.

Seeking Guardianship

The court decides who gets the guardianship of child after mother dies. For instance, the court can choose a relative or a family friend as the child’s legal guardian.

This happens when a custodial parent dies, and any of the following circumstances are present:

  • There are no closer relatives requesting child support
  • Third-party custody serves the best interests of the child
  • There is an established relationship between the child and the third party
  • The child’s adjustment to school, home, community, and other factors
  • The third-party’s ability to support the child, both financially and emotionally

Individuals considering becoming the child’s guardian should immediately step forward and tell the court about their existing relationship with the child or any related experience or qualifications.

What are the Duties of a Guardian?

Legal guardian of the kid got the child custody after death of motherA legal guardian has the right to make legal decisions on behalf of the child. Legal choices include the place they live in, the school they will attend, and any decision regarding his medical care.

In addition to that, legal guardians are responsible for several other things since the court grants them legal and physical custody.

Therefore, they must fulfill the same obligations of a parent towards their child, including:

  • Providing the child with food, clothing, and shelter
  • Maintaining the child’s physical and mental health
  • Protecting the child from safety hazards and any outside dangers

Guardians have a legal obligation to act truthfully and responsibly when it comes to the child’s finances. In other words, guardians must always act in good faith, exercise good judgment, and treat their ward’s estate as they would their own.

Moreover, guardians should leave the funds of the ward always separate from their accounts. Hence, if the ward suffers a loss due to the guardian’s breach of fiduciary duties, the court can hold the guardian legally responsible for its financial losses.

Foster Care

A child might become a ward of the state if, after his mother’s death, neither the father nor any other third party can care for him. Although this stands out as the least favorable option, it may become the only one.

In such cases, the child enters the foster system, and the concerned family members or friends will not choose a specific foster home or location.

Adoption might be possible through the foster care system; however, most foster children never find adoptive families. Therefore, it is preferable if concerned family members volunteer as guardians.

Will the Court Decline Child’s Custody to the Surviving Parent?

Even if the court prefers granting custody to the surviving parent, there are several exceptions where the court won’t give the child’s custody to the non-custodial father.

These exceptions include the following:

  • Stepparent adoption: If the mother was married before her death and her husband legally adopted the child, he will remain his guardian. When a stepparent adopts a child, he usually terminates the biological parent’s rights towards the child.
  • A valid will: The mother may state that she feels she should receive her children’s custody after her death. The court is not obliged to follow the mother’s request but will consider it when tackling the custody case.
  • Children who are old enough to decide: the law does not consider young children mature enough to make big decisions for themselves. However, older children can often choose to live with a guardian rather than their biological parents. Legal ages in which the law considers children old enough to make their own decisions differ from one state to another.
  • Known abuse: if the surviving biological parent has a proven record of child abuse towards his children, the court will not grant him custody.


  • Sad boy after the death of his motherIn usual circumstances, a mother’s death places a huge emotional burden on her family, particularly on her children. When the mother is also the custodial parent, the situation becomes even more challenging.
  • The law handles child custody after death of custodial parent very carefully. Each case differs according to the situation of the surviving parent and other potential carers.
  • Suppose the non-custodial father insists on taking over the child’s custody. In that case, he must prove his legal paternity by providing valid and legal evidence.
  • A third party might be eligible to care for the child more than his other biological parent. The court will take into consideration many factors when making such a decision.
  • Legal guardian’s duties are similar to those of biological parents towards their children.
  • Foster care might be the only option when the father or any other eligible third party cannot care for the child.

Custody of a child when parent dies is a challenging and challenging matter. It is essential for a child to feel safe, valuable, and cared for. In case you have any concerns related to child custody and residence after the death of his custodial parent, it would be best to seek professional advice from a skilled lawyer. This last will guide you through the entire process and help you determine the best options available.

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