In Re Marriage of McCann

Introduction

The district attorney appeals from the grant of a motion to set aside an ex parte order for child support enforcement. The question presented is whether a child support order terminates by operation of law upon the death of the custodial parent. We hold that the order does not automatically terminate when the custodial parent dies. Even if the noncustodial parent assumes custody, he or she still must request judicial termination of the order if termination is not provided for in the existing support order.

We further hold that the district attorney may bring an action on behalf of the children for whose benefit the support was ordered to recover arrearages accruing after the custodial parent’s death.

Statement of Facts

Frank D. McCann and Leslie McCann were married in 1974. They had two daughters, Stacy, bom in 1975, and Lauren, bom in 1978. The marriage was dissolved in 1988.

The judgment of dissolution provided that the parents would have joint legal custody of the children, while the mother would have physical custody. Frank was ordered to pay Leslie child support of $250 per month for each child “until further order of the court or until a child…