When parents have separated we are often asked by one parent… “what happens with my child when I die?”
Generally this is only an issue when the person asking does not want the child to live with the other parent.
The first thing to consider is that you don’t have to be a parent to apply to the Family Court (or Federal Circuit Court) for a parenting order. The Family Law Act specifies who can apply for a parenting order, and it includes grandparents and “any other person concerned with the care, welfare or development of the child”. The “any other person” category could include a new partner or a family member.
Of course, the person has to be willing to make the application. It would be good to talk with the relevant people about your wishes and what is possible for them.
When there are court proceedings for parenting orders an order will be made about who the child is to live with. It is possible to obtain an order that provides for what happens on that parent’s death. If the orders do not make this provision (as most don’t) the Family Law Act specifically states:
- The surviving parent cannot require the child to live with him or her.
- The surviving parent, or another person (ie grandparent, other person concerned with the care, welfare or development of the child) may apply for a parenting order that deals with the person or persons with whom the child is to live.
By Alan Wright