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Death of a Custodial Parent in Ohio and Ohio Law

Death of a Custodial Parent in Ohio and Ohio Law
October 31, 2018 Shannon Dawes
Parental Alienation Syndrome Attorneys in Columbus OH

If tragedy strikes and the primary parent in a custody agreement dies, who will have custody of the children? In the blog below, Dawes Legal, LLC, points out the different options for child custody in the event of this unfortunate situation.

Rights of Non-Custodial Parent in Ohio

Generally in Ohio, if the custodial parent dies, the non-custodial parent will have sole parental rights of the minor children left behind. Custody agreements do not terminate parental rights, and in many situations, the parents would have arranged for shared parenting in their custody agreement, through which both parents had continued parenting time and shared responsibility for the children.

If the deceased parent is the mother, the surviving father will need to have already established paternity or will need to establish paternity immediately upon the death of the custodial parent. This can be established by way of birth certificates, acknowledgments of paternity, or paternity testing. If paternity establishment is not necessary or it has already been established, the non-custodial parent will usually have a presumption of full parental rights of the children.

Reasons for Denying Custody to Non-Custodial Parent in Ohio

Transfer of custody is not always automatic upon the death of the custodial parents in Ohio. There might be situations in which a court would deny custody to the non-custodial parent. For instance, if the custodial parent remarried, and his or her new spouse adopted the children, custody would very likely go to the step-parent, not the biological parent. This act of adoption is usually seen as a termination of the biological (non-custodial) parent’s rights.

In addition, the non-custodial parent might be unfit to have custody of the children. This will require a showing in court that the surviving parent cannot meet the best interests of the children. Usually, these procedures are initiated by other relatives, like grandparents, or friends of the family.

Third Parties and Custody Laws in Ohio

Upon the death of a parent, family members or friends might wish for the children to live with them. In these circumstances, they will need to petition the court to become the children’s legal guardians. Courts are reluctant to place children outside of the homes of their biological parents, but in certain situations, third parties can gain custody.

If the deceased parent appointed a third-party guardian in his or her will, the court would take this into account. The court would also consider whether the children wish to live with a third party. The court does not have to follow either of these directives but will always decide in the best interests of the children.

If you are trying to plan for the care of your children upon your passing or would like to review your custody agreement, contact Dawes Legal, LLC, today. By calling (614) 733-9999, you can schedule a consultation with an experienced Ohio family law attorney.