My Ex Died. Who Gets the Kids?

Posted August 29th, 2016 by .

Categories: Family Law.

child custody dead parent anthony carboneAfter a nasty divorce, your ex-spouse receives sole custody of your two children. However, when driving to work one day, your ex gets into an accident and unexpectedly dies. Although the ex’s will states that the grandparents should gain custody of the children, is it possible that you can gain custody of your children?

It’s awful whenever a parent dies, no matter what the situation can be. But when you throw in child custody issues during this hard time, it can very traumatic for everyone involved. When a custodial parent dies, the court general awards custody to the surviving biological parent unless the parent has been considered as unfit. This may be the case in the scenario above, especially since sole custody was given to the deceased parent.

In New Jersey, a parent is deemed unfit when he/she is incapable of providing a safe environment for the children. For instance, the parent is addicted to drugs or has anger management problems that causes him/her to be abusive. However, if the parent can prove that he/she has improved the living situation, then the court can reverse its decision.

But what if the will states the children go with the grandparents? Although the court will take your ex’s final wishes into consideration, this does not mean the grandparents are automatically given custody. You may want to discuss an arrangement with the grandparents so things don’t get heated in the courtroom.

Another party the court may take in consideration when choosing custody is the children. If they aren’t too young, they may decide who they prefer to live with.

If you are involved in a heated child custody battle in New Jersey, it’s helpful to have an experienced family attorney by your side to fight on your behalf. Contact the Law Offices of Anthony Carbone today for a free consultation.

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