Crystal Wright | May 8, 2023 | Child Custody
Georgia law provides for the modification of child custody orders for a substantial change in circumstances. The death of a parent or guardian is one of the circumstances that can lead to a modification of custody in Lawrenceville, GA.
Who Gets Custody of a Child If a Parent or Guardian Dies in Georgia?
Placing custody with a surviving parent is the preferred option after a parent’s death. The Official Code of Georgia Annotated (O.G.G.A.) §19-9-2 states that the surviving parent is entitled to custody of a child upon the other parent’s death. Therefore, sole custody should go to the surviving parent when a parent dies.
However, the judge can place custody with another person if that is in the child’s best interest. If another person petitions the court for custody, the judge must determine if the surviving parent is fit to have custody of the child or if there are circumstances that make the parent unfit for custody.
The judge uses the same factors that they would use if the child’s parents were fighting for custody. The overriding factor is the well-being of the child.
Who Can Get Custody of a Child in Georgia After a Parent’s Death?
In addition to the surviving parent, other family members could petition for custody of the child. A grandparent, aunt, uncle, or adult sibling could file for custody after a parent’s death. Additionally, godparents, friends, and extended family members might ask the court for custody of a child.
The court places the child with a family member or friend whenever possible. Otherwise, the child moves into the Georgia foster care system. After a parent’s death, the court might also consider a child’s wishes for who they want to live with until they are emancipated.
If there is a custody dispute, the judge considers several factors in determining the best person to have custody and care of a child.
Factors a judge considers in child custody cases in Lawrenceville, GA, include:
- The child’s bond and relationship with each person petitioning for custody
- Allegations of domestic violence, substance addiction, neglect, or abuse
- The home environment of each potential person requesting custody
- The ability and willingness of the person asking for custody to meet the child’s needs
- The capacity and disposition of someone to provide the child with support, guidance, affection, love, education, and rearing
- The person’s mental and physical health
- The knowledge and familiarity the person has regarding the child’s needs
- The child’s relationship with the remaining family members and how custody would impact those relationships
- Recommendations by a court-appointed custody evaluator
- The ability to provide continuity for the child
The judge may consider other factors when deciding where to place a child after a parent’s death. The surviving parent has a rebuttable presumption of receiving custody. However, that presumption can be overcome if the court receives evidence proving that granting custody to the surviving parent would be detrimental to the child’s well-being.
Working with an experienced Lawrenceville child custody lawyer is the best way to ensure the court hears your arguments.
Guardianship After the Death of Parents – Naming a Guardian and Conservator for Your Child in Your Will
The parent with primary physical custody of a child is the custodial parent. A custodial parent has the right to make decisions for the child. For example, a parent with legal custody decides whether the child should have medical treatments, where a child attends school, and whether to raise the child in a specific religious belief.
A guardian is appointed by the court to serve as the child’s legal representative. The guardian makes decisions for the child as if they were the child’s legal parent. However, a guardian can be any person the probate court deems just and proper.
A conservator makes financial decisions for the child. They manage their finances and the inheritance they receive from their parents. The same person can serve as the guardian and the conservator, or the court might appoint two different people to serve in these roles.
A parent can name someone to serve as their child’s guardian and/or conservator in their will. Absent a reason not to grant the parent’s wishes, the probate court typically abides by the parent’s wishes.
However, if one parent survives the other, the law mentioned above would apply. Custody should be vested with the surviving parent, absent a reason for the court to deny custody.
Child custody matters after a parent’s death can be complicated. A Lawrenceville child custody attorney can explain your rights and legal options for obtaining custody or guardianship of a child.
Contact the Divorce Lawyers at Crystal Wright Law To Get Legal Assistance Today
To learn more and get the help you deserve, call our divorce & family law firm at (404) 594-2143 or reach out to Crystal Wright Law online by visiting our contact us page.
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.