One of the real perks of being an appellate lawyer is that I have the opportunity to just READ — read all of the crazy stories about life that work their way into the legal system. While working today on a child custody appeal between grandparents and a parent, I came across one of those interesting stories about what happens when a parent is terminally ill and wants his or her parents to effectively “take over” custody. The case I was working on wasn’t exactly on this topic, but it has come up before in discussions with my wife, who treats patients with sometimes-terminal cancer. Many of these patients have legal questions about the custody of their children, especially when they are not married to the child’s other parent. The patient may have real concerns that after their own death, the child’s other parent may “automatically” obtain custody of the child, even if he or she has been an absent or nominal figure in the child’s life to that point. The primary parent obviously has real concerns about what he or she might need to do to settle those issues before they die. I came across a case today on this topic, and since it wasn’t exactly on point for my client’s case, I turned off the legal timer and took the opportunity to read and educate myself.
This is obviously a vast topic, but I wanted to highlight a couple of points which are well articulated in Linker v. Linker v. Boling, 291 N.C. App. 343, 895 S.E.2d 620 (2023). First, there is no “automatic” transfer of custody from the deceased parent to the surviving parent. Certainly the surviving parent has a “paramount status” which will give him or her the inside track on taking over custody, but that position is not unassailable. Even unrelated parties can have the standing to pursue custody of the child over the surviving parent, in some circumstances. Further, grandparents have particular status in these situations to obtain “visitation” or custody (these terms are sometimes synonymous and sometimes not). Their status is not as high as that of the parent (usually) but they do have options that non-grandparents do not.
Finally, some of these alternatives depend on the existence of a pending custody action, which means that the dying parent may wish to initiate a custody proceeding even if she or she knows that she will not survive to see it to the end. Grandparents in particular can intervene more easily into a pending case than they can if no case has been filed. Any parent in this situation should therefore seriously consider consulting with an attorney before they pass away.
Regardless of whether your case involves a dying parent, though, the issue of grandparents and parents fighting for custody of a child is not a rare one. If you are the party to such a custody action and receive a custody order that you are dissatisfied with, please reach out to this firm about an appeal. We have dealt with this sort of case on multiple occasions.