joseph fox said:
can the grandparents of a deceased son step into his shoes regarding visitation and custody of grandaughter. We were told this was done for us in court order, but we need something written to this effect
My response:
Since you failed to tell us your State name as instructed (See the red writing at the top, and also in the frame in which you wrote your post), and since you never told us who the custodial parent was, I can only offer you generalized law from California.
Therefore, if the custodial parent dies during the child's minority, the surviving parent immediately becomes entitled to sole custody, unless it is proved by clear and convincing evidence that such custody would not be in the child's best interests and would be detrimental to the child (i.e., Ca Fam § 3041 "dual findings" for nonparent custody order. The full panoply of parental rights reverts to the surviving parent, including the right and responsibility to make all decisions relating to the child's health, education and welfare. [Ca Fam § 3010(b); Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 223 Cal.Rptr. 707; In re Janette H. (1987) 196 Cal.App.3d 1421, 242 Cal.Rptr. 567; Schammel v. Schammel (1894) 105 Cal. 258, 38 P 729]
Therefore, the question of "custody modification" becomes moot with the custodial parent's death: i.e., since there is now only one parent to assert parental rights, the original custody order itself is moot. (This of course assumes that only the parents were parties to the custody order.)
When it is the noncustodial parent's death, a child custody order technically becomes "nonmodifiable" with the noncustodial parent's death (again, assuming the parents were the only parties to the order). Thus, third parties who for the first time want to contest custody or visitation must do so by way of an independent proceeding (guardianship, dependency or, in the case of grandparents, a Ca Fam § 3104 visitation petition. [See Marriage of Jenkens (1981) 116 Cal.App.3d 767, 773-775, 172 Cal.Rptr. 331, 334-335--no jurisdiction to modify custody order at grandparents' behest since noncustodial parent had died and grandparents not parties to original proceeding (also, no finding parent custody would be "detrimental" to child)]
Good luck to you,
IAAL
