After your divorce, the judge’s custody order may not be the final word on where your children will live. Yes, it is possible that circumstances change and you and your ex make different arrangements, either by court order or voluntarily. However, what happens if one of you dies? What if the one meeting the Grim Reaper turns out to be the custodial parent?

The judge loses his authority over a divorced couple and their children if one of them dies. The divorce decree no longer has force against either party because the judge cannot enter an order against a dead person, nor can that person protect her own interests.

This is not to say that orders relating to the property and debts of the marriage are no longer valid. After all, they were made when both parties were alive and able to tell their side of the story. However, when it comes to custody, visitation, and child support orders, the effects of the decree are extinguished once one of the parties can no longer comply with the decree due to death.

This is a sobering consideration when parents hate each other to death. Stepparents, grandparents, aunts, or uncles may want to take the children, but they have no right to do so, even if they do not like the children’s living parent. All the other parent of the child has to do is pick up the children from where they are. If the police are called, all they will do is keep the peace while the children’s other parent takes them to his own home.

If there is reason to believe that the other parent is incapable of caring for the children, a guardianship petition may be filed. However, even if the judge also personally dislikes the father, he cannot simply take the children from their living father on that basis. For a guardianship petition to be successful, there must be clear and convincing evidence that the children are in some physical or psychological danger if left in the care of their parents.

The standard of proof required for a guardianship is stronger than the “best interest” standard that governs your placement during the divorce. The question is not where the children would be better off, but is limited to the question of whether their other parent is able to meet their basic needs for food, clothing, and shelter.

The situation surrounding the death of a parent worsens when the last custodian’s extended family is hostile towards his former father-in-law. Not only are they grieving the loss of a loved one, but they are also facing a future of little or no contact with another important part of their family.

The reaction of grandparents, aunts, or uncles may be to try to take the children away from their living parent. This attempt is often counterproductive. Not only are they likely to lose in court, but they will not endear the surviving parent by being hostile to him or her. As a result, children not only lose their deceased parent and extended family, but often find themselves in unfamiliar surroundings with virtual strangers when they most need consistency and security.

No one wants to die before seeing their children graduate high school or walk down the aisle. Meeting our grandchildren is one of life’s rewards that most of us look forward to with gratitude and delight. However, life is and always has been unpredictable. The fact that the death of a parent may occur at an inopportune time in a child’s youth is just one of many reasons divorcing couples should try to keep their relationship cordial and encourage their children. to be an important part of the lives of both parents. It will never be easy for a child to lose one of her parents, but it may make it easier to adjust to the new situation if he is already an important part of her surviving parent’s life.