Talking With Children About a Sudden Death While a Legal Case Is Pending

Published March 14, 2017 · For Grieving Families

When a parent, grandparent, brother, or sister dies suddenly, the adults in a family are often in shock themselves. Yet children need answers right away, and they notice everything: the phone calls, the visitors, the closed doors, the meetings with police or lawyers.

If the death was caused by someone else, there may also be a criminal investigation, an insurance claim, or a wrongful death case. Parents and guardians ask us how much to tell a child about all of that. There is no script that fits every family, and we are lawyers, not child counselors. But we have sat with many families in this situation, and a few principles come up again and again.

Start with honest, simple words

Children cope better with the truth told gently than with a mystery. Use the words "died" and "dead." Phrases like "went to sleep" or "we lost him" can confuse young children or make them afraid of bedtime.

Keep the explanation short and concrete for younger children: "There was a car crash. Daddy was hurt so badly that his body stopped working, and he died. The doctors tried very hard." Older children and teenagers will want more detail and will often find it on their own, so it is better that they hear it from you first.

Let children know it is fine to ask questions, and fine to ask the same question many times. Repetition is how young children make sense of something enormous.

Tell them it is not their fault

Children often believe, without saying it, that something they did or thought caused the death. Say clearly and more than once that nothing they did, said, or wished caused it.

When another person was responsible, children may also be angry, or frightened that the same thing could happen to someone else they love. Those feelings are normal. You can acknowledge them without encouraging children to carry the weight of blame or revenge.

What to say about the legal case

Children do not need to know the details of a lawsuit or a prosecution, but they usually sense that something is going on. A brief, calm explanation helps:

• For young children: "Some grown-ups are working to find out exactly what happened. That is their job, not yours."
• For older children: "The police and the courts are looking at what the other driver did. Separately, we are working with a lawyer to make sure our family is taken care of. You can ask me anything, but you don't have to worry about it."

A few things are worth avoiding:

• Do not discuss strategy, settlement numbers, or the other side in front of children. They may repeat what they hear at school or online, and they may worry about money or feel the outcome depends on them.
• Be careful about promises. Avoid saying "the bad man will go to jail" or "we will win." Legal outcomes are uncertain, and a broken promise can hurt.
• Keep the case off social media, and talk with older children about doing the same. Posts can be found by insurers and defense lawyers.

Expect the case to bring the loss back

Legal cases have milestones: an arrest, a hearing, a deposition, a trial date, a settlement. Each one can reopen the grief for adults and children alike. Plan ahead for those days when you can. Let teachers and coaches know when something significant is coming, and give children extra time and attention.

A criminal case and a civil case often move on different schedules. Our earlier post on the DuBose family's settlement explains how they fit together. Knowing that, you can prepare children for the fact that "it" may not be over for a long time, and that this is normal.

Will my child have to be involved?

Many parents worry that a child will have to testify. Whether a child would ever be asked to speak in a case depends on the child's age and the issues in the case, and it is something your lawyer should talk through with you well in advance. In many cases a child's loss can be shown through the people around the child: parents, relatives, teachers, coaches, and counselors who can describe the relationship and what has changed.

What matters to the law is the relationship your child had with the person who died. Ohio's wrongful death statute lists the losses a family may recover. Under R.C. 2125.02(B)(3), they include loss of society, which the statute describes to include companionship, care, guidance, counsel, instruction, training, and education. For a child who lost a parent, those words describe the bedtime stories, the help with homework, the advice that will not come. You can read more about what Ohio law allows families to recover.

How Ohio law protects children's interests

Children are central to an Ohio wrongful death claim, even though they cannot bring it themselves.

• Children are presumed to have suffered damages. Under R.C. 2125.02(A)(1), the action is brought by the personal representative of the estate for the exclusive benefit of the surviving spouse, the children, and the parents, all of whom are rebuttably presumed to have suffered damages, and for the other next of kin.
• A child born after the death counts. Under R.C. 2125.02(A)(3)(a), a child conceived before the death and born alive afterward is a beneficiary of the action.
• A court must approve any settlement. Under R.C. 2125.02(C), the personal representative may settle only with the consent of the court that made the appointment, usually the probate court. That review helps protect children's shares, and the probate court also decides how money for a minor is held and protected until the child is grown.

These protections exist so that a child's future does not depend on decisions made in the worst weeks of a family's life. You can read more about how Ohio wrongful death law works.

Take care of yourself, too

Children take their cues from the adults around them. You do not have to hide your grief. It is healthy for children to see that adults cry and still get up in the morning. But you also deserve support of your own, whether from family, faith, friends, a grief group, or a counselor. Your child's pediatrician or school counselor can usually suggest grief resources for children in your area.

If you are still gathering answers about how your loved one died, our post on whether to request an autopsy may also help.