Divorce can take a tremendous toll on the emotional health of children. Fortunately, if you share custody of your kids with your ex-spouse, the young ones in your family have two loving parents to help them thrive. If your ex-spouse dies, though, you may wonder what happens to the custody order. 

California law specifically addresses the death of a custodial parent. If the parent dies before a child becomes an adult, the surviving parent automatically receives sole custody. That is, because only one parent remains, the original custody order essentially becomes moot. There is a significant exception, however. 

The best interests of the children

When making custody determinations, judges in the Golden State must consider the best interests of the children. If you have an existing custody order, the judge in your case has likely already addressed relevant factors and decided co-parenting is in the best interests of your kids. 

Nevertheless, if the surviving parent’s sole custody of the children is not in their best interests, a judge may make other custody arrangements. Before doing so, though, the judge must have clear and convincing evidence that granting sole custody to the surviving parent would be detrimental to the kids. 

A modification of the custody order

Because life is fleeting, the death of a co-parent may be sudden. For example, a parent may perish in a car accident or die after an unexpected medical emergency. Often, though, life ends after a prolonged illness. 

If your children’s co-parent is unable to fulfill his or her obligations under the custody agreement but is still alive, you may be able to seek a modification of the custody order. If you can show such a modification is in the best interests of your kids, a judge may grant you sole custody prior to your ex-spouse’s death. 

While having some notice about your ex-spouse’s impending death may give you an opportunity to modify the custody order, you may have to do nothing to secure sole custody after a co-parent dies.