Custody of a Grandchild When a Parent Dies in Virginia

When a parent dies, the immediate question for grandparents and relatives is whether they have any legal right to keep caring for the child. The answer depends on whether one parent or both have died, whether there is a surviving parent, and what steps you take in court.

What Happens Automatically Under Virginia Law

If one parent dies, the surviving parent becomes the child's sole natural guardian under Virginia Code § 64.2-1700. That transfer is automatic — no court filing is needed. The surviving parent has full legal authority over the child, even if the child has been living with a grandparent or other relative.

This means that if a mother dies and the child has been living with the maternal grandparents, the father has the legal right to take the child. A grandparent who wants to keep the child must file a custody petition and meet Virginia's evidentiary standards.

When both parents have died, check whether either parent appointed a testamentary guardian by will. The named guardian must appear in the court where the will is admitted to probate within six months to accept the appointment. If no effective appointment exists, a relative can seek a JDR custody order or Circuit Court guardianship under Title 64.2.

What a Will Actually Does (and Doesn't Do)

Many grandparents believe that if a parent named them as guardian in a will, custody transfers automatically at death. That is not how Virginia law works.

Under Virginia Code § 64.2-1701, a parent can appoint a testamentary guardian by will. A guardian of the person who is not a parent is not entitled to custody while either parent is living and fit and proper. The named guardian must appear in the court where the will is admitted to probate within six months to accept the guardianship and give any bond required under § 64.2-1704.

A will can name a guardian, but it does not give a nonparent custody over a living, fit, and proper parent.

How to Get Custody After a Parent's Death

The path depends on the surviving parent situation:

Both parents deceased, with no effective testamentary appointment. File a Petition (Form DC-511) in JDR Court or petition the Circuit Court for guardianship of the person under Title 64.2. In JDR Court, the filing fee is $25 and you will need a certified death certificate, the child's birth certificate, and a completed UCCJEA Affidavit (Form DC-620) listing where the child has lived for the past five years.

One parent deceased, surviving parent objects. This is the harder case. You must rebut the parental presumption by clear and convincing evidence of one of five grounds recognized by Virginia courts: parental unfitness, a previous order of divestiture, voluntary relinquishment, abandonment, or special facts and circumstances constituting an extraordinary reason to take the child from a parent. The court must also find that awarding custody to the nonparent serves the child's best interests.

One parent deceased, surviving parent agrees. The simplest route may be a Power of Attorney under Virginia Code §§ 20-166 and 20-167, which delegates parental authority for up to 180 days. For a permanent arrangement, a joint petition or consent order in JDR Court secures lasting legal authority.

When a Child Is 14 or Older

Virginia Code § 64.2-1703 gives a minor aged 14 or older the right to nominate their own guardian, either in court or through a notarized writing. The court or clerk must appoint the nominee if they are suitable and competent; if the minor resides outside the Commonwealth, the court or clerk may instead nominate and appoint a guardian as if the minor were under 14. This can matter when a teenager has a strong preference for staying with a particular relative.

Emergency Situations

If a child is physically present in Virginia and has been abandoned, or an emergency requires protection because the child, a sibling, or a parent is subjected to or reasonably apprehends mistreatment or abuse, a Virginia court may exercise temporary emergency jurisdiction under § 20-146.15. When another state's court has jurisdiction, the Virginia order must specify a period adequate for a party to seek relief there. This is not a shortcut around the full custody or guardianship process.

Next Steps

Getting a certified death certificate filed with your petition, assembling the child's five-year address history for Form DC-620, and knowing which court to file in are the first practical hurdles. Our Virginia Guardianship and Custody Court Process Guide walks through each step — the forms, the fees, the notice requirements, and what to bring to the hearing — so you can move through the court process without guessing what comes next.

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