Who receives custody of the child if the custodial parent dies?
If the custodial parent of a child dies then the surviving parent has a rebuttable presumption of custody. According to N.J.S.A. 9:2-5 custody does not automatically revert to the surviving parent. The family court is required to enter an order or a judgment that transfers custody to the surviving parent. The standard of review in these types of custody cases is not the best interests standard. New Jersey Courts have determined that “a presumption of custody exists in favor of a [surviving] parent, and that only a showing of unfitness, abandonment, grosses misconduct, or ‘exceptional circumstances’ will overcome this presumption.” Therefore, only if the surviving parent is unfit or if there is an exceptional case will the best interests standard be used to determine custody of the child. See, Watkins v. Nelson, 163 N.J. 235 (2000). In summary, a third party can only seek custody from the surviving parent if he or she is unfit, has abandoned the child, or is grossly immoral. The third p
