Death of a Custodial Parent

Reviewed and approved by Kathryn Wayne-Spindler

When a child custody agreement is made between unmarried people, one parent will sometimes be granted more custody than the other parent. The parent who is granted more custody rights is called a “custodial parent”. The minor child resides with the custodial parent majority of the time. The custodial parent often has joint legal custody over the minor child and is able to make decisions on behalf of the child with the agreement of the other parent.

The other parent is known as the “noncustodial parent”, and sometimes it is not uncommon for them to have more limited custody rights. The noncustodial parent may be awarded parenting time and visitation with the minor child. Sometimes their legal rights are more limited.

After the death of the custodial parent, the surviving parent becomes the child’s natural guardian. In this case, a noncustodial parent’s parental rights are not terminated by order of custody. Custody of the child goes to the surviving parent, unless the surviving parent is unfit. However, there are many things that are taken into consideration.

  1. If the surviving parent of the child is the father, paternity must be established if it has not already been done. When a father is unmarried to the mother of the minor child an affidavit of parentage is signed in order to establish legal paternity rights to said minor child.

2. If an affidavit of parentage was not signed, an unmarried father will not have immediate rights to the minor child. Instead, he will have to go before the court to establish paternity. Sometimes in the cases where paternity is proven after the birth certificate is signed and issued, the certificate can be changed based on what is found out in court.

3. A biological father can also request paternity testing after the death of the custodial parent. Many states have different laws and procedures for what needs to be done for the acknowledgement of paternity or to refute paternity of a child. In Michigan, to establish paternity, a father would have to petition the court before paternity testing can occur.

4. When signing an affidavit of parentage certain rights are guaranteed. Said rights can vary depending on the case, but will most likely include the right to be responsible for child support, the right to have their name on the birth certificate, and the right be consulted and contacted in the event of an adoption proceeding. And other matters.

5. The process to establish custody is not always easy when there has been little contact with the child and you can be tied up in court for longer than expected. By a father paying child support regularly, he can show that he wants to be involved in the minor child’s life. In cases where the grandparents are the minor child’s new guardians and the grandparents do not want the minor child to visit with their father, the father can petition the court to order the grandparents to allow the minor child to visit him so that he and the child can develop a meaningful relationship.

6. The court will not award custody to the biological father if the ex-wife remarried and her new spouse adopted the child. This is due to the fact that a step-parent adoption terminates the biological parent’s rights. This includes the biological parent’s rights to receive custody if the custodial parent shall dies.

7. If the custodial parent had a will in place, it often states who the parent feels most comfortable with receiving custody of the minor child upon their death. The will does not give the person named automatic custody of the minor child, the Court has discretion when it comes to custody regarding minor children, however, the court will take the will into consideration.

8. The courts may consider the preference of older minor children when it comes to custody and if they prefer to live with the surviving parent or with another guardian. When it comes to younger minor children, the court does not see them as capable to make such major decisions.

Do you have a specific question about your child or grandchild and what will happen if the custodial parent dies? Do you, as the custodial parent, want to make arrangements for your child, if you die. Call the attorneys at Spindler Law. We can help navigate you through your specific needs for your child.


The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties as well as four mid-Michigan counties Clare, Gladwin, Ogemaw and Roscommon. The attorneys handle cases in Milford; Highland; Hartland; White Lake; Wixom; Commerce; Walled Lake; Waterford; West Bloomfield; Linden; Fenton; Flint; Grand Blanc; Holly; South Lyon; New Hudson; Howell; Clare; Gladwin; Houghton Lake; Higgins Lake; and many more Michigan communities. And soon to be opening another office in Dadeville, Alabama.


For more information, please see article “Child Residence and Custody: Death of Custodial Parent” by Jose Rivera on