Who Gets Custody if a Parent Dies?
Death is never a subject people like to talk about. But when it comes to your children, it is something you need to think about. Who gets custody if a parent dies?
Some people believe that what they put in their will about the care of their children will decide what happens to them if they die. However, if parents are separated, that is not the case.
If there are family law orders in place, who gets custody if a parent dies?
If there are parenting orders in place specifying who the children are to live with in the event of the death of one parent, then they will override what is contained in someone’s will.
This doesn’t stop a party who is interested in the welfare of the child applying to vary that order. Whether or not they succeed will depend on a range of factors including how long ago the order was made.
What happens if a parent dies and there are NO family law orders in place?
More commonly, there is nothing specified in orders about who a child will live with if one of the parents dies. We have been involved in some cases where a parent was terminally ill, so provision was included, but it is rare.
Does the child go to live with the person named in the deceased parent's will?
Does the other parent automatically get custody?
If a mother dies does the father automatically get custody?
The answer to these questions, is “it’s not that simple”.
If the parenting orders don’t specify who will become primary carer of a child if the parent who they live with dies, then the surviving parent can’t just make the child live with them. Similarly, the deceased parent’s wishes don’t take precedence.
Unless there is a family law court order naming the surviving parent as intended to become the primary carer, it isn’t automatic.
So who could the child be ordered to live with if a parent dies?
Anyone who is significant in the child’s life can apply for an order. That might be a grandparent, aunt, uncle, or stepparent.
If a non-parent does apply for a parenting order, the surviving parent or whoever else who has parental responsibility for the child is entitled to be a party to the proceedings.
If this all sounds a bit complicated, it’s all about what’s best for the child.
There might be circumstances where the surviving parent is not suitable to care for the child and there might be someone more suitable. For example, say Mum gets a new partner. The child lives with her and a Stepdad. Mum and the Stepdad have kids together. Mum dies. The Court would need to decide if the child should live with the Stepdad and half siblings or live with Dad.
But it doesn't seem fair to the surviving parent to have to go to Court!
Whilst this might sound unfair to the surviving parent, there is no “fair” in family law. It is about what is best for the child, and it is not automatically the surviving parent. There may be many reasons why they are not the best person for the child to live with.
How can we minimise trauma to children if a parent dies?
If there are no provisions in a family law court order for parenting post death of a parent, then, if it becomes likely a parent will die, the parents need to discuss who will get custody if a parent dies, as difficult as that might be. Children need to be prepared for the parent’s death and professional assistance should be obtained to help with that. Parents can use Mediation or Collaborative Law to work out a plan of what to tell the children and what their future care arrangements will be.
If the topic is not discussed prior to a parent’s death, then the people concerned about the child’s welfare should attempt to resolve the matter peacefully and minimise conflict, rather than rushing off to the Family Court.
If a parent dies, there will be enough grief and trauma for the child to overcome, without being caught in a custody battle (especially if the parents had one to start with!)
If you are concerned about what will happen to your children's custody if a parent dies, contact us for an appointment with a member of our family law team
The information in this article is general information only, not legal advice. Seek independent advice about your own situation.