One of the tragic situations we sometimes come across as family lawyers is the death of a parent who still has children under 18 years.

If parenting orders are in place that provide for a child to live with one parent, and the orders do not provide for what is to happen on that parent’s death, the surviving parent cannot require the child to live with him or her.

In many situations this will be the most common outcome. In some situations however, having the child live with the other parent is not in the child’s best interest, such as where the other parent has only had limited involvement with the child or lives some distance from the child’s current residence or even overseas. In these cases, there may be a relative, step parent or third party who has had much more involvement with the child who is willing to have the child live with him or her.

What happens after the death of a parent?

If there is disagreement about whom the child lives with, the surviving parent, or another person interested in the care, welfare of development of the child can apply for a parenting order.
Proceedings do not need to be commenced if all relevant parties agree on whom the child is to live with but having the agreement formalised by way of a consent order can be beneficial if the child is not living with the other parent as schools, heath facilities and government departments often require some form of formal record.

If a parent with care of a child becomes aware they are terminally ill, an application or agreement can also be considered prior to that parent’s death. Just doing a will appointing someone as a guardian of the child is not binding on a Family Law Court – it is only an indication of the wishes of the person making a will.

Any questions? Don’t hesitate to contact us.