In the event of the death of a separated parent, the care and living arrangements for their child or children are influenced by various factors, including whether or not the parents have court orders in place at the time of the death, the safety of the child or children in the care of the surviving parent, and any other carers including grandparents and stepparents with whom the child or children have a relationship.
If there are Court Orders in place:
Court Orders will typically provide for the allocation of decision making responsibility, the child or children’s living arrangements, time spent by the children with each parent, and a variety of other provisions as are necessary and applicable. Court Orders may dictate who is to have decision making responsibility and care of a child or children’s following the death of a parent, however if both parents were in good health at the time they were made, they often will not.
If the Orders provide for what is to occur in the event of the death of a parent, those provisions should be adhered to.
If there are not Court Orders in place, if the Court Orders do not provide for the death of a parent, or the Court Orders are not appropriate:
If the Orders do not provide for the death of a parent or there are no Orders in place, the surviving parent would generally continue to have decision making responsibility and retain care of the child or children, however this may not be appropriate if there are concerns about the surviving parent’s ability to make decisions or provide suitable full-time care for the child or children. In that event, other carers such as a stepparent, grandparent or other family member may seek to apply to the Court for Orders providing them with sole or primary care of the child or children, or for the child to spend time with them.
In all scenarios, the best interests of the child or children is the paramount consideration in any decision made by the Court.