What Are the Rights of a Non-Custodial Parent when the Custodial Parent Dies?
If a parent with sole custody appoints a guardian for a child in a will and then passes away, what ability does the non-custodial parent have to override the directive?   Generally, when a parent is given sole custody of a child, the non-custodial parent does not lose their parental rights.  As such, a non-custodial parent who out-lives an ex-spouse will generally regain custody of the child.  That said, if the sole custody parent has concerns about the other parent’s ability to care for the child, that parent should articulate those concerns in his/her will.  It is unlikely that a court would override the non-custodial parent’s rights, but the custodial parent should at least voice his/her concerns.  

There are a few exceptions to the general rule that non-custodial parents regain custody of their children upon the death of the custodial parent.  For example, if a court has terminated a non-custodial parent’s rights due to abuse or neglect, the court will honor the appointment of someone other than the ex-spouse as guardian.  Also, if a former spouse survives the custodial parent and either abandons the child or is simply unable to care for the child, the court will also appoint a guardian for the child. In these circumstances, courts give great deference to a custodial parent’s Will in determining whom to appoint as the guardian.  For this reason, parents should always name a guardian for their children in their wills.