A Child Support Order Does Not Automatically Terminate on the Death of the Custodial Parent, Even if the Supporting Parent Assumes Child Custody

Frank McCann and Leslie McCann were married and had two daughters. After the divorce, mother received physical child custody of the children. Father was ordered by the divorce court to pay child support of $250 per month for each child. Mother became ill and subsequently died. After which daughters continued to live at their grandmother’s home. For a short duration of time, the older daughter Stacy, moved out of grandmother’s home to live with her mother’s friend. Grandmother paid the friend $500 per month for Stacy’s living expenses. Stacy spent a summer at a dude ranch, after which she returned to her grandmother’s home. While Stacy remained with her grandmother, father continued to pay $500 per month. When Stacy temporarily left, father only paid $250 per month until Stacy returned.

The divorce court had found that after mother’s death, father assumed child custody and the support order had terminated upon mother’s death. The District Attorney requested that the divorce court find that the child support order survived the death of the custodial parent, and find that father owed $2,000 plus interest in child support payments for the period where he stopped paying child support. Upon review, the Court determined the support order was in effect after the death of the custodial parent. The Court stated none of the contingencies specified in the child support order that would have stopped father’s obligations had occurred. The Court held the death of the custodial parent did not automatically terminate a support order even if the supporting parent assumes custody of the children. Thus, father could not unilaterally terminate his own obligation without first seeking judicial termination or modification.

Additionally, the court determined that the district attorney was authorized to proceed on behalf of the children to enforce the child support order. The child support order runs to the child and not the parent. The father had the responsibility of initiating a judicial action to show the divorce court there had been a change of circumstances instead of unilaterally terminating the child support order. Thus, the court reversed the divorce court’s order and held in favor of the children.

In re Marriage of McCann (1994) 27 Cal.App.4th 102