§ 19-9-2.Right of surviving parent to custody of child; discretion of judge
Chapter 9. Child Custody Proceedings · Article 1. General Provisions · Last amended 2023 · Last verified October 9, 2026
Full Text of § 19-9-2
Plain-English Summary
When one parent dies, the surviving parent is entitled to custody of the child. That is the starting point, and in most families it settles the question: the child stays with or goes to the living parent.
But the right is not absolute. Someone can petition the court, and the judge may then exercise discretion over custody, looking solely to the child’s best interest and welfare. The section also addresses a grim situation directly: when the surviving parent has been criminally indicted for murder or voluntary manslaughter of the other parent, the court may proceed in its discretion. An indictment is only a charge, not a conviction, so this lets the court act to protect the child before any criminal case is resolved.
This section works alongside other parts of Title 19. A conviction for murder or voluntary manslaughter of the other parent is one of the ways a parent loses parental power under § 19-7-1(b)(7). And when a parent dies, the deceased parent’s own parents may seek visitation under § 19-7-3(d) if they meet that section’s standard. The section was last amended in 2023.
Frequently Asked Questions
Who gets custody if one parent dies in Georgia?
The surviving parent. Under this section, upon the death of either parent, the survivor is entitled to custody of the child. That entitlement can be challenged: on a petition, the judge may exercise discretion over custody, looking solely to the child’s best interest and welfare.
Can grandparents get custody if a parent dies in Georgia?
They can ask. The surviving parent is entitled to custody, but the section lets a judge, upon petition, decide custody by looking solely to the child’s best interest and welfare. Whether grandparents succeed depends on the facts and the judge’s discretion. Separately, § 19-7-3(d) lets the parents of a deceased parent seek visitation if the court finds by clear and convincing evidence that the child would otherwise be harmed and visitation serves the child’s best interests.
What happens to custody if a parent is charged with killing the other parent?
The court can step in before any conviction. When the surviving parent has been criminally indicted for murder or voluntary manslaughter of the other parent, the section lets the judge, upon petition, proceed in the court’s discretion. A conviction for either crime would also cost the parent parental power under § 19-7-1(b)(7).
Does the surviving parent automatically keep the child in Georgia?
Not automatically in every case. The survivor is entitled to custody, but on a petition the judge may exercise discretion based solely on the child’s best interest and welfare. Without a petition, the surviving parent’s right governs.
What standard does a Georgia judge use after a parent’s death?
The child’s best interest and welfare — and nothing else. The section tells the judge, when exercising discretion on a petition, to look solely to the child’s best interest and welfare. That keeps the focus on the child rather than on the claims or wishes of the adults involved.
Amendment History
Laws 1979, p. 466, § 42; Laws 1996, p. 412, § 2; Laws 2007, Act 264, § 5, eff. Jan. 1, 2008; Laws 2023, Act 245, § 4, eff. July 1, 2023.
Formerly Code 1863, § 1745; Code 1868, § 1785; Code 1873, § 1794; Code 1882, § 1794; Civil Code 1895, § 2503; Civil Code 1910, § 3022; Code 1933, § 74-106.