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Appointing someone as a guardian for your child in your Will is not binding in the Family Law Court – but it is a good way to indicate your wishes

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In the unfortunate event that a parent of a child under 18 years old was to die, then all parental rights will pass to the surviving parent (subject to any court orders in place at the time). If both parents die unexpectantly at the same time, who would you entrust the care of your children to? You can appoint a guardian under your Will to care for your child/children. In the event only one parent dies, typically, the courts will favour the child’s surviving parent over any appointed guardian in a Will. If you do not wish for the surviving parent to obtain guardianship rights, you need to seek legal advice, Attwood Marshall Lawyers Family Lawyer, Laura Dolan, explains why.

Introduction

When a parent of a minor child passes away, it is generally the case that the surviving parent will continue with the care of the child.  However, things can become more complicated if one parent dies and the couple is separated or divorced. This is especially the case where parties do not have a positive co-parenting relationship and the existence of parental Court Orders are in place, which outline the care of the child. It will be up to the courts to decide whether the surviving parent or the guardian appointed under the deceased’s Will takes on parental responsibility for the child. The court will look at several factors, including parenting orders in existence, agreements, the relationship the surviving parent has with their child, as well as the relationship the chosen guardian has with the child, and living arrangements.

Legal Guardianship vs Custody – What’s the difference?

Legal custody is what a court would grant if there is ever a dispute regarding where a child should live. For example, in cases of divorce or separation, a custody agreement could determine things such as which house a child will live in and how much of their time will be spent there. Terms of a custody agreement can also define other aspects of the child’s care, such as medical and education expenses and other financial obligations as well as shared living arrangements.

Legal guardianship is what a court may grant to someone other than a biological parent. It would give an adult the right to care for a minor. Parents assume guardianship by default, but in cases where a parent is absent or unfit to care for a child, the court may step in and appoint someone else to the role. Depending on circumstances, biological parents may retain their parental rights even if someone else is appointed as the child’s guardian. A judge can revoke or suspend these rights in extreme cases. In the event biological parents are deceased, a guardian could also be granted custody. 

The Power of Parenting Orders

When parents cannot come to an agreement on the arrangements for their child, then either parent may apply to the court for a decision about what is best for the child. When the court makes any orders about children, they are called parenting orders. When a parenting order is made, each person affected by the order must follow it.

Grandparents or any person concerned for the welfare of a child, otherwise referred to as kinship carers, can also make an application for parenting orders.

For useful information and resources for grandparents and kinship carers, click here to visit the Federal Circuit and Family Court of Australia website.

When making a parenting order the court must consider a child’s best interests.

A parenting order may deal with any of the following:

  • who a child will live with
  • how much time the child will spend with each parent and with other people, such as grandparents
  • the allocation of parental responsibility
  • how the child will communicate with a parent they do not live with, or other people
  • any other aspect of the care, welfare or development of the child.

If there are family law orders in place, who gets custody when a parent dies?

It is the common misconception that if there are parenting orders in place and one parent dies, the other parent automatically has the ‘right’ to say the child is to live with them. The Family Law Act (Cth) (the “Act”) says the opposite:

Section 65K of the Act deals with such circumstances and applies if:

  1. A parenting order is in force that provides that a child is to live with one of the child’s parents; and
  2. That parent dies; and
  3. The parenting order does not provide for what is to happen on that parents’ death.

Therefore, the surviving parent does not get the automatic right to live with the child.

If there are parenting orders in place specifying who the child/children will live with in the event of death of one parent, then they will override what is contained in someone’s Will.

No Court Orders in place – what about nominating a guardian in your Will?

You can nominate someone in your Will as a ‘testamentary guardian’ of your children. A testamentary guardian may be able to make decisions about the long-term care of the child such as education and healthcare, remembering that every decision should be made in the best interests of your child.

Being appointed as a guardian under a Will does not make the direction binding, it means that the guardian is entitled to be a part of any proceedings in determining the guardianship of the child, including challenging any parenting order already made.

What if I do not appoint a testamentary guardian?

If you do not appoint a testamentary guardian in your Will, and you die, it will become a matter for the Family Court. There may be several family members or significant individuals who form part of the child’s life who may be suitable and willing to take responsibility and guardianship of the child, although, they will have to make out their case to the court.

On this basis, the court will look at what is in the best interests of the child and consider all circumstances, not just biology. There may be circumstances where a surviving parent is not suitable to care for the child, and there may be someone known to the child that is more suitable.  

How will the court decide who my child lives with?

What is in the best interests of the child will be paramount when making guardianship decisions. The circumstances and factors that the court needs to consider include the wishes of the child/children, ages of the child/children, and capacity of the parties who wish to provide care for the child/children. It will be essential for the court to understand and identify the relationship between the child/children and the competing parties.

When it comes to parenting arrangements, it is important to consider every situation that may arise due to life’s uncertainties. Therefore, discussions and arrangements should take place especially if one party is ill or has known health issues and there are proceedings on foot or orders about to be entered into about parenting arrangements.

A parent’s greatest responsibility is caring for and making all decisions in the best interests of their child/children. To ensure that you properly plan for the future and protect your children in the event something unexpected does happen, it is important to seek legal advice from an experienced lawyer who can assist you in drafting appropriate estate planning documents and document your wishes clearly.

Attwood Marshall Lawyers are here to help you plan for the future and protect your family

If you are the parent of a minor and have specific requirements regarding who you want to take care of your child if you die, discussing your wishes with an experienced family lawyer is the best place to start. This is a very complex area of law and there are a lot of things to consider. If you plan ahead, and ensure you cover your legal bases, it will be more likely that your wishes will be carried out based on your clear instructions.

It is our intent to ensure family law matters are handled in the most efficient way possible. When it comes to children, we want to help you ensure that they are always protected and looked after. We understand that no-one is going to love a child like their parents do, however appointing a trusted guardian for your children in your Will can give you peace of mind in knowing that they will continue to be cared for and looked after in the environment you want for them.

Our family lawyers will provide you with trusted and prompt advice to help you protect your children’s best interests and put all the required legal documents in place.

If you need help with a family law matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or call 1800 621 071 at any time.

Our team are available at any of our conveniently located offices at Robina Town CentreCoolangattaKingscliffBrisbaneSydney and Melbourne.

Read more:

Senior Family Lawyer calls for urgent action for access to children for separated parents: Family law parenting issues are smouldering behind border closures and lockdown directives – Constitutional legal argument looms

Parental alienation on the rise during pandemic as lockdowns fuel family conflict

Separated? Should you allow the kids to go overseas?

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Laura Dolan

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