The death of a parent is often painful at any age. To lose not only a parent – but also a custodial parent - while you’re still a child can be devastating and completely life-altering.

A new report released by Judi’s House, a child bereavement non-profit advocacy group, reveals 1 in 12 kids will lose a parent or sibling before turning 18. Specifically in New Jersey, the rate is slightly lower, at 1 in 13 children. A total of 6.8 percent of New Jersey kids will lose a parent by the age of 18, compared to the national rate of 7.1 percent. Accidents, heart disease, cancer, suicide, homicide, and drug overdoses are leading causes of death among parents with minor children.

As for the legal fallout with child custody when such a tragedy occurs, it creates a rebuttable presumption that the other biological parent will become the full-time custodial parent. As our child custody lawyers can explain, that presumption isn’t the last word. It can be rebutted by third parties, such as grandparents, aunts, uncles, adult siblings, etc. But the burden of proof will be on the petitioner to show why the biological parent is unfit, neglectful, or negligent - and the bar is pretty high.

Generally speaking, Family Courts want kids to have some semblance of normalcy and stability during such a traumatic, awful time. That means they will often consider what is in the best interest of the child. N.J.S.A. 9:2-4 lays out the factors relevant to the best interests of the child:

• Interaction/relationship of the child with the parent and/or proposed guardian.
• Any history of domestic violence.
• Child’s safety.
• Child’s preference (if they’re old enough to weigh in).
• The physical needs of the child.
• The home environment stability.
• The quality of the child’s education.
• The geographical proximity of the child to their previous home/neighborhood/school/etc.
• Employment responsibilities of the parent/proposed guardian.
• Age and number of children in the home.

That said, the best interests of the child aren’t the only - or even the first - of considerations in such cases (as we’ll explain more in a bit).

Biological parents generally are not deemed unfit unless their conduct has resulted in a substantial adverse effect on the child. If the two were actively and effectively co-parenting prior to the death, the question of custody is probably pretty straightforward. In all likelihood, the surviving parent will be awarded sole custody.

That said, N.J.S.A. 9:2-5 holds that surviving parents aren’t automatically entitled to child custody if:

• The decedent had been awarded the care and custody of the children by the Superior Court.
• The parent had full custody of the kids when they died, and they were living separately from the other parent, to whom no child custody had been awarded.

In other words, this applies if the surviving parent didn’t have joint or even partial custody of the children when the custodial parent died. But even that doesn’t mean the surviving biological parent will be denied custody. It just means they’ll need a formal order or judgment from the Superior Court to assume custody.

That said, the Court can grant guardianship of the children to another family member or friend at the request of that individual or a guardian ad litem appointed by the court to advocate for the child in court. Close family or friends may be able to make a strong case for custody/guardianship if they can show the surviving parent is unfit and largely uninvolved AND that they (the petitioner) have played an active role in caring for/raising the child. This high level of involvement can lead the court to designate the third party as a “psychological parent.” But even then, proving the surviving parent unfit is essential for most third parties seeking custody of a child under these circumstances. If they are unable to do so, they may be able to successfully argue for the Court to grant regular visitation.

A precedential ruling by the Supreme Court of New Jersey issued in the 2000 case of Watkins v. Nelson is instructive in cases like this. At issue in that case was a 3.5-year-old who had been living with her mother’s parents after the 17-year-old died in a car accident less than two weeks after giving birth to the baby girl. The child’s father had legally established paternity when the mother died, but the pair weren’t living together and there was no formal custody order. At the funeral, the girl’s father said he wanted to take custody of his child, but the maternal grandparents refused. Although the maternal grandparents questioned the young father’s maturity (and his biological paternity, which was later proven), they never asserted he was unfit.

The trial court and appellate court ruled in favor of the child’s maternal grandparents, finding it was in the best interests of the child to be with their grandparents - despite the biological father being a fit parent. The lower courts ruled that the maternal grandparents “stand in the shoes of their deceased daughter,” and thus stood in parity (on equal ground) with the child’s father.

The state high court in Watkins reversed. Why? Because New Jersey law creates a presumption in favor of the surviving biological parent. That presumption can be rebutted by proof of:

• Gross misconduct.
• Abandonment.
• Unfitness.
• The existence of exceptional circumstances.

It is NOT rebutted by the simple application of a child’s best interests test, the court ruled. Because that never happened in the Watkins case, custody of the child was immediately transferred to the biological father, with grandparent visitation hearings to be held soon after.

Outcomes in these cases depend heavily on the unique circumstances of each case. Our East Brunswick child custody lawyers can help individuals wrestling with difficult and sensitive situations like these.

Our New Jersey divorce lawyers can assist clients with divorce, division of assets, prenuptial agreements, child custody disputes, and more. Call us at (732) 810-0034 or visit us online.