The loss of a parent can be devastating, no matter what your age. But it is challenging when minor children are involved. In California, minors are defined as those under 18 years of age and need love and support during their traumatic experience. Determining who gets child custody after the death of both parents can be a difficult and complicated journey. However, it is necessary for you to understand if you desire to take on custody of the child or are concerned for their safety.

As a family friend, relative, or another interested party, we want to explain more about how California handles these intricate court cases. That way, you can be prepared if a child’s custodial parent dies or has already passed.

The Chain of Child Custody

In the case where just one parent of a married couple dies or becomes incapacitated, it is most common that the child’s other parent will retain sole custody unless special circumstances exist. Establishing for the court that your child would be better off without the surviving biological parent can be a difficult guardianship case to pursue.

The surviving parent normally receives full custody of your children if the parents are divorced, and one of the adults dies. They would need to complete advance planning in a signed will, or the court could appoint someone else as guardian of their child that may not be their first choice. In cases where both parents die, the situation can be even more complex. If you do not leave specific instructions for the custody of your child, the court takes over. A judge will usually choose a relative to take parental control, even if this is someone you didn’t want to take over your child’s care.

California Code for Death of Both Parents

If both natural parents die without a will, then the court has the responsibility of appointing a guardian. In California, the court acts under the state code that governs the best interest of the child. Generally speaking, the factors a judge will consider when determining the best interest of a child include:

  • Child’s age: A judge will review the potential guardian’s relationship with the child since especially young kids need hands-on care
  • Consistency: Courts generally prefer to keep kids’ in a consistent routine. This includes living arrangements, school or child care routines, and access to extended family members
  • Evidence of parenting ability: The legal system works to make sure that the adult who receives custody is able to meet the child’s physical and emotional needs. This includes long-term support for food, shelter, clothing, medical care, education, emotional support, and guidance until the children turn 18 years of age
  • Health: Courts consider the parents’ physical and mental health and want to assure there are no issues with safety, mistreatment, alcohol, or drug abuse
  • Preference: Very often, a child can have a say in who is appointed their guardian as long as the judge believes the choice makes good sense

Preparing in Advance for Child Custody

You can see why planning ahead is essential if you are a parent of young kids. You want your children to be protected, and appointing a guardian is one of the best ways to show you love them. That is why it is vital for you to have an estate plan in place that names your preference of a legal guardian to care for your minor child should the worst happen.

Failure to have a will with this information can have unwanted consequences. It could make the process of selecting an adult to care for your child a stressful situation for those left behind. Or, a judge might send your child to foster care if there are no other alternatives.

Becoming a Guardian

The process of who receives custody is complex. But you don’t have to go at it alone, especially if you want to assume custody as a family friend or relative who loves the child. Our attorneys are skilled in guardianships and child custody with decades of combined experience. We can answer your questions about how to proceed in court with petitioning as a responsible legal guardian.

You can easily schedule a consultation by calling our law offices at (800) 840-1998 for legal advice. We would welcome you to meet in one of our offices in Torrance, Laguna Hills, or Irvine. Or we will set up a virtual meeting with you at your convenience no matter where you are located.