Death and parenting orders

Death is not something that is easy to talk about, but if you’re in the middle of making parenting arrangements and custody orders after a relationship breakdown, it’s something you need to consider.

If for example, you have sole parental responsibility for your children, will your ex automatically get custody if something happens to you? What if you’ve already nominated someone in your Will to take care of your children? Will your wishes be honoured?

The answer is – it’s complicated.

You can nominate someone in your Will as a “testamentary guardian” of your children. They will be able to make decisions about the long-term care of your children, including decisions about education or religion.

However, your children will not necessarily live with that person. If the other parent is still alive, the testamentary guardian will share their obligations with the surviving parent or any other existing guardian.

And an existing parent or guardian can apply to the Supreme Court to cancel the appointment of a testamentary guardian.

If parenting orders are in place that specify a child lives with one parent, and they do not say what will happen after the death of that parent, the surviving parent does not automatically gain custody of that child.

It is the most common outcome, however, sometimes it is not in the child’s best interest to live with their surviving parent. This can happen when the other parent has had limited involvement in the child’s life, lives a long way from them, or in circumstances of abuse where it would not be safe for the child to live with them.

In those cases, a relative, step-parent, or family friend who has had much more involvement with the child might be willing to have the child live with them.

Under the law, any person concerned with the care, welfare and development of a child can make an application to the Court for parenting orders to have the child come and live with them.

The Court will decide if that is in the best interest of the child.

If everyone agrees on where the child is to live, court proceedings do not need to take place. However, formalised consent and parenting orders can be helpful for schools, health facilities and government departments.

If you, or your former partner is facing the tragic circumstances where one of you is terminally ill, having an agreement in place before the inevitable is a good idea.

Just appointing someone as your child’s guardian in your Will is not binding in a family law court, it’s only an indication of your wishes.

In a recent case, (Blackett and Leicester) a judge ordered that a child, aged 10, remain living with his maternal grandparents following the death of his mother.

The father objected and wanted his son to live with him on a full time basis, and see his grandparents one weekend a month, and during some school holidays.

However, the child had been living with his maternal grandparents since before the death of his mother. The grandparents had a significant role in caring for him during his mother’s illness, and he had two older siblings who also lived with the grandparents.

The court noted the child had never lived primarily with his father in the seven years since the end of his parents’ relationship. It was decided it would be in his best interest to remain living with his grandparents, be able to continue to attend the same school, and maintain a relationship with his older siblings.

Orders were put in place for the child to see his father and stay with him on a regular basis.

These are not easy matters to discuss, but for the future of your children, it’s important to take into consideration when making parenting orders, particularly if you, or your ex, are ill.

If you need legal advice, contact the Bickell & Mackenzie office on (07) 3206 8700 to make an appointment. We’re here to help you.

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