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Can My Ex Get Custody of My Kids If I Die?

Can My Ex Get Custody of My Kids If I Die?
Can My Ex Get Custody of My Kids If I Die?

When a custodial parent dies, the non-custodial parent and family members are concerned about who will get custody of the children. If your ex is the biological parent, there is a greater chance that he or she will get custody of the children. Other concerned family members like your current spouse, or another relative could challenge the biological parent for custody if they are already acting as a parent or a caretaker in the children’s lives. In the end, it is up for the judge to decide based on what is the best interests of the children and who is the best to take care of them.

Child custody is a sensitive topic because of the huge emotional consequences it gives both to the parents, the child, and other concerned persons. When a custodial parent dies, child custody issues are much more emotional to tackle.

The information below about child custody following the death of a parent can help you understand better and help you prepare.

The question of “Can my ex get custody of my kids if I die?” is a difficult one. Below are some possible candidates who may serve as your children’s guardians:

1. Biological parent

2. Stepparents

3. Grandparents of the children

4. Relatives

5. Family friends

6. The state

Biological Parent

A biological parent or the non-custodial parent is first in line on who will get custody of the child if a custodial parent dies. However, for this to happen, paternity has to be acknowledged and established. Paternity means fatherhood, so establishing it means reaching a legal decision who the father of the children is.

A formal acknowledgment of paternity in Virginia requires either:

· The biological father’s signature on the birth certificate

· A signed Acknowledgment of Paternity which must be filed in a Virginia family court

Another way a biological father can acknowledge paternity is to initiate paternity testing following the death of the custodial parent. Different states have different procedures for acknowledging paternity of a child. In Virginia, you can establish paternity in two ways: 1) You can open a child support case through the Division of Child Support Enforcement (DCSE) by requesting an application online or you can also file a petition at the Juvenile and Domestic Relations District Court in your city or county.

Again, biological parents always come first if they are considered fit to be the children’s caretaker.


If the custodial parent has remarried and there is a stepparent, it can be complicated. The custody may depend on the relationship between the stepparent and the children. But it is worthy to note that only stepparents who have legally adopted the children has some rights as a biological parent. However, if the stepparent has not yet legally adopted your children through the formal process of adoption in the Commonwealth of Virginia, a family court will not likely award custody to such stepparent.

Third-party custody

Third-party custody is when a court gives legal and physical custody of the children to someone who is not a biological parent. This person is also called as a “child custodian”.

The courts will also consider third-party child custody such as making grandparents the legal guardian of the children. Other close relatives such as aunts, uncles, or cousins can also get custody of the child when both the biological parent and grandparents are unfit to do so.

If the other three mentioned above (biological parent, grandparents, and relatives) cannot fulfill the responsibilities of a guardian, family friends such as godparents or trustworthy neighbors can also get custody of the children.

When a custodial parent dies and any of the following circumstances are present, third-party custody is allowed by the court:

· There are no other close relatives requesting child support

· There is an established relationship between the child and the third party

· When one parent is deceased, and the other is unfit

· Third-party custody serves the best interests of the child

The court has the final say whether to grant third-party custody to the child after a custodial parent dies. However, any concerned individuals who wish to be concerned should step forward immediately and let the court know of any interest, relevant experience, qualifications following the death of a custodial parent.

The State

Lastly, the State is the lease favorable option who can be the guardian of the child. However, if there are really no other alternatives, the children could become wards of the state. When this happens, the child unfortunately enters the foster care system. There is no way for concerned family members to choose the specific foster home or even the location on where the children could go to.

The Best Interest of the Child

A parent and a child have a unique bond that is irreplaceable. Virginia family courts will generally look to the “child’s best interest” in determining custody. There are factors which the court considers when determining the best interest of the child:

· Age and gender of the child

· Adjustment to school or school preference of the child

· Adjustment to the community

· The child’s wishes – if he or she is old enough

· The child’s physical and mental condition

· The parent’s physical and mental condition – to determine fitness

· The relationship between each parent and the child

· The needs of the child

· The reasonable preference of the child

· The parent’s and child’s religious preference – if the child is old enough to elect a specific religion

· The need for continuation of a stable home environment

· The support of household members of extended family of either parent

· Parental use of discipline

· If there was history of physical abuse or emotional abuse

· Evidence of use of drugs, and alcohol of parents

· Any other factors that the court determines to be necessary in making a fair determination of child custody

Last Will and Testament

Death is not a likeable subject for anybody. But when it comes to your children, it is definitely something to think about. Who will get custody of your children when you die? Will it be your ex?

The best way to care for your children in case of any unforeseen tragedy is to create a valid last will and testament. While it is not always automatic that a court will approve of your selection on who will get custody of the children when you die, it is still highly likely, especially if you take the time to explain your reasons to the court.

If you are separated or divorced or already share custody with the other biological parent of the children, typically that surviving biological parent will have custody of the children, regardless of the arrangements in the will.

The reason to this is simple: A child is not considered a property and provisions in a will are not determinative of where the child will be placed.

Some language in the deceased parent’s will expressing a desire for a specific person to care for his or her children after his or her demise might help support that person’s case if that person file a third-party custody action.


Child custody laws vary from state to state. Virginia child custody process may seem straightforward but consulting with an experienced family law attorney is always advisable to be certain you are complying with Virginia local laws and to be advised of any potential consequences you may encounter along the way.


If you are a parent who is concerned about who will get custody of your children after you die, and still have numerous questions after reading this article, we recommend you to talk with Virginia Divorce Attorney Tori Bramble for clarification and more details about child custody arrangements. Call us at (540) 628-7340 or visit our website at We are here for you.

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