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Custody and Visitation in North Carolina After One Parent Dies

Posted by Jonathan Jerkins | May 06, 2019 | 0 Comments

A parent's death is an emotionally trying time. If the custodial parent dies, the non-custodial parent may wonder who will have custody of the child. If the non-custodial parent dies, the custodial parent may question what relationships must continue with the deceased parent's family.

North Carolina law specifies what happens to the custody order when one parent dies. It also specifies who can seek court-ordered visitation, and under what circumstances they can do so.

Custody Orders

When one parent dies, the final child custody order and any pending custody actions are terminated completely if the parents are the only two parties involved. North Carolina courts recognize that the surviving parent has the legal right to custody of their child, regardless of whether they were the custodial parent at the time of the other parent's death. 

Visitation With Extended Family

North Carolina law recognizes and protects the surviving parent's rights to make decisions for their child, and this includes decisions regarding grandparent visitation.

In limited cases, North Carolina law allows grandparents to seek court-ordered visitation with their grandchildren. However, grandparents cannot open a new case for visitation unless they can prove to the court that the surviving parent is unfit, such as by neglecting or abusing the child.

Because one parent's death terminates any active custody disputes, grandparents cannot file a motion to intervene.

However, when a court order issued before the parent's death expressly gives rights to a third party, such as grandparents or other extended family members, this portion of the custody order continues. In these instances, the surviving parent is legally obligated to allow visitation as specified in the custody order. If the surviving parent wants to change this, he or she must petition the court and show why ongoing contact is not in the child's best interests. 

In the Supreme Court case, Troxel v. Granville, Justice Sandra Day O'Connor wrote in her Opinion, "The interest of parents in the care, custody, and control of their children...is perhaps the oldest of the fundamental liberty interests recognized by this Court." North Carolina courts have upheld the right of parents to make decisions in the best interests of their children, including, in many circumstances, grandparent visitation.

Considerations for Children Born Out of Wedlock

When a child is born out of wedlock, the father does not have a legal right to the child until he completes the legitimation process.

Legitimation is a separate legal proceeding from establishing paternity. Paternity determines that you are the child's natural parent, and legitimation gives you and your child all the rights of legitimacy, including the right to custody after the mother's death and being an active participant in your child's upbringing.

Hire an Experienced Child Custody Attorney in Raleigh, North Carolina

A parent's death can create complex legal issues with custody and visitation, and you need a caring but experienced attorney during this sensitive time. Whether you are the surviving parent or a grandparent with questions about custody and visitation rights, the attorneys at Jerkins Family Law are committed to helping you. Contact us today.

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.

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