When a parent dies, it is normally the other biological parent who gains custody of the child. For example, if a mother dies, custody of the child goes to the biological father if they have parental responsibility. In the UK, ‘child custody’ is often referred to as ‘child arrangements’, which covers decisions made on behalf of a child, including where they will live and who they will spend time with.
Does the father automatically get the child custody if a mother dies
A father is likely to automatically get custody of their child if the mother dies, but only if they have parental responsibility for their child. A father will normally have parental responsibility for their child if they are named on the child’s birth certificate, they are married to the child’s mother, or it is granted by the family court.
The only time when a father with parental responsibility will not gain custody of their child if the mother dies is if there are serious welfare or safety concerns if the child is placed into the custody of their father. This is because the courts will always do what is in the best interests of the child. If there are concerns that the father has issues with issues with drugs, alcohol, illness, or violence, custody may not be granted to them.
Unmarried father rights if a mother dies
If an unmarried father does not have parental responsibility, he must first obtain it. This can be done through a parental responsibility agreement with the mother prior to her death (if possible) or by applying to the court for a parental responsibility order.
To formalise custody of their child, the father may need to apply for a Child Arrangements Order through the Family Court. This confirms who the child will live with and how contact with others, such as extended family, will be managed.
The court will take into consideration a range of factors, such as the father’s relationship with their child, the emotional, physical and financial stability he can provide, and the wishes of the child (depending on their age and maturity).
Remember, the court will always prioritise the child’s best interests when making such important decisions. The primary consideration in custody cases is the welfare of the child. The judge overseeing the matter will evaluate the emotional, educational, and social needs of the child before making any decisions.
Grandparents rights after death of a parent
Grandparents do not have automatic rights to gain custody of a grandchild whose parent has died. However, following the death of a parent, grandparents, or other family members may apply for custody. Unlike parents, grandparents do not have an automatic right to apply for custody of their grandchild; they must get permission first. Before applying to the court, grandparents normally have to attend a Mediation Information and Assessment Meeting (MIAM) to explore whether the matter can be resolved outside court through mediation.
The next step is to seek permission from the Family Court to make an application by completing a C100 form1 along with a request for permission. This application can be completed and submitted online. Once received, the court will consider factors such as:
- The child’s relationship with the grandparents.
- The ability of the grandparents to provide a stable and secure home environment.
- The child’s wishes and feelings depending on their age and maturity.
- The involvement of any other relatives, such as the surviving parent or other family members, and their applications for custody or contact.
- What is in the best interests of the child.
In some cases, grandparents may apply for a Special Guardianship Order. An SGO gives the grandparents parental responsibility and allows them to make significant decisions about the child’s upbringing while maintaining the child’s legal relationship with their birth parents.
Please speak to our family law team who can advise on the best legal routes to gain custody of your grandchild in the event of parental death. We can handle your case and represent you throughout your matter, ensuring that you have the best chance of securing custody of your grandchild.
How to appoint a guardian for my child if I die
A parent can appoint a guardian for a child in the event of their death by nominating a testamentary guardian. Doing so can give much-needed peace of mind that someone they know and trust is there to look after their child after their death.
A testamentary guardian can be appointed by a parent with parental responsibility for the child, a guardian for the child, or a special guardian for the child. To appoint a guardian for your child if you die, you can include them within your Will as a testamentary guardian. You can also put this in writing as long as it is dated and signed by you as the person appointing the guardian.
The appointed guardianship will take effect on the death of the parent making the appointment. It is important to understand that becoming a testamentary guardian does not mean that the child can automatically live with that person. To overcome any dispute regarding where the child should live, it is normally necessary to have a Special Guardianship Order or Child Arrangement Order drawn up and approved by a court.
References
1 GOV.UK: C100 form
