Child Custody | Fabrikant Law | Family Attorney

Child Custody When a Custodial Parent Dies

As with all custody cases, all decisions are made in the best interests of the child. In New Jersey, when a custodial parent dies there is a presumption that the living biological parent assumes custody.  When both parents have been very involved in the child’s life, this is usually a non-issue.  Sometimes, however, there is another person in the child’s life who believes that he or she has been more involved in the child’ life or is better suited to be the custodial parent, than the living biological parent.

A custody dispute between a natural parent and a third party is governed by Watkins v. Nelson, 163 N.J. 235. Essentially, the biological parent’s presumption of custody is derived from his or her Fourteenth Amendment rights and rooted in his or her right to privacy. However, presumption in favor of the biological parent can be overcome by “a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child [.]” Watkins, supra, 163 N.J. at 246.

Thus, that other person in the child’s life, such as a grandparent, aunt/uncle, sibling, step parent, or same sex partner, assumes the burden of proving that the surviving parent is ‘unfit,’ or has abandoned, neglected or abused the child.  A third party can also try proving ‘exceptional circumstances’ or in other words, that they are the child’s “psychological parent” and should have custody instead of the biological parent.

Such situations are still rare and of course the welfare of the child is of the utmost concern.  Custody is a legal matter that begins at divorce or separation. It will continue to be of concern for the rest of both parents’ lives or until the child is emancipated. Child custody guidelines are unique to each state but their basis is universal. If you require guidance in these matters, please contact this office.

Please be advised that this blog is for informational purposes only, is not legal advice and does not create an attorney-client relationship.

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