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What's the legal procedure when a custodial parent dies? Does the non-custodial parent automatically have the right to custody?

Medford, OR |

My son's father died of cancer. I just found out yesterday when I received a letter from the child support office that he passed away a MONTH earlier. Apparently, my son has been living with my estranged parents for at least 3-4 months, and now they're seeking custody. As of today, they've filed a petition, but I haven't been served, because "they didn't know where I lived."

What is the legal process in contacting a non-custodial parent when a custodial parent dies?Wouldn't it be considered parental interference to assume custody and NOT inform the non-custodial parent that the custodial parent is deceased? Do I have the right to show up at my estranged parents house and take my son and his belongings home with me?

Attorney Answers 1


Generally when a parent dies, the child's other parent will have primary custody rights by default. In practice, what happens in these cases is often dictated by practical exigencies, and I wouldn't get too excited about any "parental interference" claims at this point.

The law strongly favors biological parents for custody of their children. It is possible for a non-biological-parent to assert a custody claim against a parent, but in order to prevail, there are a number of difficult legal hurdles to go through. The non-parent has to claim to a court, and to be able to prove, that they have established a parent-like relationship with the child, and that the child would have a substantial likelihood of suffering physical, psychological, or emotional harm if they remained in the biological parent's custody. The law presumes that parents act in the best interests of their children; the non-parent must rebut that presumption. It is not an easy burden to meet, but it is possible under certain circumstances. Generally it requires the opinion of a psychological or social work professional that the child is better off with the non-parent.

So if your ex-in-laws have in fact filed such a petition, then you may as well respond to it, and use that venue to assert your parenting rights and, if necessary, get a judgment confirming them. In theory, in the meantime, you could just show up and take the child, but that may not be the best thing to do - for your child, or for your case. The legal standard for custody decisions is the best interests of the children. Based on the facts contained in this question, we have no idea how much contact you've had with your child so far; how frequently, &c., or whether there might be any facts that would justify the grandparents making a custody claim. If you immediately swoop in and remove the child from an environment where they've been given shelter after a terribly traumatic experience, that could be rather against their own best interests, and could strengthen the grandparents' claim. But if you appear in the case and ask for a parenting time order, then you'll have the backing of the law. You should consult with an attorney who practices domestic relations law in your area. You can call the Oregon State Bar for a free referral at 503-684-3763.

Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give legal advice about laws in other jurisdictions. All comments on this site are intended to be for informational purposes only and do not constitute legal advice or create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: | Online:

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