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What if a Parent Dies Before Parenting Arrangements are Finalised?

5 December 2017

An unfortunate but sometimes real situation is when parents are in dispute in court about arrangements for their children and one of the parents dies. What happens then? It’s not what you might automatically assume.

A recent court case considered such an issue.  In that case, the parents were in court disputing the parenting arrangements for their 3 children aged 12, 10 and 7 years of age.

Unfortunately, the mother passed away during the proceedings due to ongoing ill health.  It was the father’s position that the children would then come and live with him.

The Family Law Act provides that if a court order is in force that provides that a child is to live with one of the parents and that parent dies, if the order does not provide what is to happen on the parent’s death, then it is not simply the case that the surviving parent can require the child to live with him or her.

Even in circumstances where parents have ‘equal shared parental responsibility’, parental responsibility does not mean that the surviving parent can then unilaterally decide, if the other parent has died, where the children should live.

Of course that surviving parent may apply for a parenting order that deals with where the child lives and the court at that time would need to consider the best interests of the child.

This is certainly something that should be contemplated when there is one party who is ill and there are current proceedings on foot or indeed, when there is a known health issue for one of the parents and there are orders being entered into about the parenting arrangements.

In this case a relative of the fathers had expressed interest in caring for the children however she did not file an application and therefore despite the court having said she could participate, she ultimately didn’t. The court made an interim order for the father to have sole parental responsibility for the children and that they live with him.

When it comes to parenting arrangements, it is important to consider every situation that may arise including the worst-case scenarios. To clearly understand what may happen in a situation and what you can do in advance to achieve the best possible outcome for your children, please seek professional legal advice.

We offer an informative initial consultation to our clients at fixed price. Call us today (07) 3221 4300.

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