What if a parent dies?

Question:

If two people have a child but don't live together, and the child lives with the mother, the father has regular access. Then the mother dies, where dose the father stand concerning his rights for full custody?

Answer:

I have come across this situation on a number of occasions.

The simple answer is that unless there is a good reason for the child not to be living with their natural parent, the courts
generally favour the child being with the parent that is still alive.

What circumstances would a court consider relevant to
preventing a child living with the surviving parent? The answer is if it could be shown that to do so would not be in the child’s welfare interests. Perhaps some examples would help (but please remember that every case is different and depends on the detail). These are the sort of circumstances where I think a court would be unlikely to sanction a child living with the surviving parents:

  • Where the child has already spent a long time living with someone else (e.g. grandparents) and has an established attachment with them that it would be harmful to disrupt.

  • Where a child’s surviving parent is not capable of providing care for the child (e.g. drink, drugs, criminal activity etc).

  • Where a child does not want to live with the surviving parent but wants to stay with their current carers and is old enough to understand that decision.

  • Where the standard of care the child would receive from the current carers is very clearly and demonstrably better than that which would be provided by the surviving parent.

Do you have
Parental Responsibility? If you do, then your are probably the only adult that does. As such you have a legal right to decide where the child live and could, as a strict matter of law, go and get the child. Only a court order could prevent this. However, I am not suggesting that anyone does this, especially if a parent has just died. If someone else is looking after the child it is much better to explain to them that you would like to spend more time with him or her with a view to the child then moving to live with you. Again, if you have Parental Responsibility (PR), without a court order, another adult cannot legally stop you seeing your child. If you have PR the onus is on whoever is looking after the child to apply to a court for an order preventing someone with PR from doing something in relation to the child.

However, these situations can be very difficult and emotional so it is wise to tread carefully. This is certainly a situation where I would advise speaking (quickly) to a lawyer. What often happens is that a child’s grandparent or other relative takes over care of the child ‘naturally’ and of course there are a lot of emotional issues. They can feel an immense sense of loss (as can the child) when they have cared for the child in a time of crisis and then the living parent turns up and ‘demands’ the child. That child can of course also be even more important to them because they are a connection to the person who has died. They may feel they ‘owe it’ to the deceased parent to bring up that child etc.

If that situation persists i.e. if a child lives with the relative for a long time, it then becomes harder for the natural parent to argue that the child should move to live with them, as the child will establish routines and attachments with the current carers. It may also be that the child feels ‘closer’ to the relative (especially grandparents) if they have been in their day to day lives whilst the parent was alive.

If you do not have
Parental Responsibility then you do not have the right to say where and with whom the child lives. You must apply to the Court for a Parental Responsibility Order and an Order that the child ‘lives with’ you. This should be done as soon as possible for reasons that I have set out above, unless the current carers agree for the child to live with you. Even then, it is sensible to always have PR for your children.

Also do not forget that the child is likely to be very close to whoever is currently caring for him or her. It is worthwhile thinking about what you will ‘offer’ in terms of the child maintaining a relationship with the that person and the deceased parents’ family.

In a previous post
here I have set out some helpful law relating to the importance of children being brought up by their natural parent.

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