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  • Writer's pictureWhitney Young

What Happens to a Child Custody Order After a Parent’s Death?

December 13th, 2018

The death of a child’s parent presents complex legal issues in situations involving an existing child custody order or a pending custody case in court.  In North Carolina, laws and court decisions establish specific rules about what happens to a child custody order after a parent’s death.

Among the “fundamental rights and liberty interests” protected by the United States Constitution and North Carolina Constitution is the right of a parent to make decisions about a child.  North Carolina laws and courts consistently recognize this right and consistently limit the ability of nonparents to interfere with decisions of a parent.

Court-established rules regarding the effect of a parent’s death on a custody order or court case are consistent with this long-established principle.  North Carolina courts distinguish between situations in which only the child’s parents are the only parties to a custody order from those in which other parties have rights. 

When nonparent family members — such as the child’s grandparents (parents of the deceased person) — wish to seek custody or visitation, the nature of the custody order or court case determines whether the nonparent can pursue those wishes in a court action. 

When Parents Are the Only Parties Involved in the Custody Order or Court Case

Under a general rule established by the North Carolina Supreme Court and followed in cases decided by the Court of Appeals, a trial court’s jurisdiction over a child custody order or court case solely involving the parents terminates completely on death of a party.  In this situation, when a parent who is party to the custody order dies, the court no longer has jurisdiction to hear or determine issues related to custody of the child.

An existing custody order that only involved the parents ceases to control the custody rights of the surviving parent.  The court no longer has jurisdiction to hear matters relating to custody of the child.  Even where North Carolina statutes permit another party to intervene in an existing custody action, those laws do not allow a third party to seek custody or visitation rights after death of one of the parents. 

A child’s surviving parent has the right to custody of the child, regardless of the terms of the custody order in effect when the parent died.

The first case in which the North Carolina Court of Appeals applied this rule was a case involving a court order giving a father primary physical custody of his children.  Under the order, the mother received visitation rights.  Two years later, the mother died in a car accident.

The maternal grandmother filed a court action for visitation with her grandchildren.  The trial court dismissed the grandmother’s claim on the basis that a pending custody dispute ceased to exist on the mother’s death.

The Court of Appeals affirmed the trial court, holding that “the trial court’s jurisdiction over the issues of visitation and custody regarding the children herein terminated upon the death of plaintiff’s daughter.”

Two years later, the Court of Appeals considered another case raising a similar issue.  In this case, a grandmother attempted to get visitation rights for her deceased daughter’s children.  Prior to the mother’s death, the parents were involved in a custody case in court.

In upholding the trial court’s dismissal of the grandmother’s claim, the appeals court stated “where one parent is deceased, the surviving parent has a natural and legal right to custody and control of the minor children.”  The court further determined that the father’s natural right following death of the children’s mother does not depend on whether the father was the custodial parent at the time the mother died.  A child’s surviving parent has the right to custody of the child, regardless of the terms of the custody order in effect when the parent died.

The court’s decision also rested on the court’s conclusion that the custody case between the mother and father ended on the mother’s death.  As such, no on-going case existed when the grandmother filed her motion to intervene.

When Parties Other Than the Parents Are Involved in a Custody Order or Action

Importantly, the Court of Appeals draws a distinction when parties other than a child’s parents are part of a custody order or action.  The case that led to the distinction involved a case in which only the child’s mother and father were parties to the action, but a custody order specifically gave rights to other family members.

During the case, a temporary custody order provided temporary custody of the child for the parents and the paternal and maternal families of the child during specific times.  The final custody order granted the mother primary custody and provided that the father and/or his parents were entitled to telephone contact with the child.

Subsequently, the child’s father died.  The mother refused to grant the grandparents the telephone contact provided for in the custody order.  The grandparents filed a motion to intervene in the custody case, seeking enforcement of the telephone provisions of the final custody order.

The trial court held that the grandparents were “de facto” parties to the custody case in view of the provisions of both the temporary and final custody orders.  As such, the case did not terminate on the father’s death.  The court allowed the grandparents’ motion.

The Court of Appeals upheld the trial court’s decision, stating that the case did not terminate when the father died, because the grandparents received custody rights during the custody action prior to the father’s death.  The grandparents were able to enforce the rights granted under the custody order.

The general rule derived from this case is that death of a parent does not terminate the trial court’s jurisdiction in a custody case if the court grants custody rights to another party during the case prior to the parent’s death.  Those rights are enforceable, even after death of the parent.

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