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Who will get custody and care of my child if I die?


Child custody on parents' death is a challenging matter to discuss and are tough decisions for the relatives involved and the courts. It becomes more complicated when the parent does not leave a will. It becomes even more complicated when the parent does not leave a will. According to a recent article in the Telegraph, more than 12,000 children lost a parent in a year in Britain.



When parents separate or divorce, generally (not always), one gets custody while the other has contact. Most people might think that the mother-father automatically gets child custody if a mother dies. Therefore, the question is, who gets the child custody after a parent dies? The answer may depend on several reasons, including whether both or one parent had parental responsibility.

Who gets custody of a child when one of the parents sadly dies?


When one parent dies, the other surviving parent can file for custody of the child if they do not have custody. Bear in mind that the law does not discriminate on gender; hence, when a mother dies, the biological father can obtain custody and vice versa. Unfortunately, though, this is not always the case. Yes, you read it correctly; that is not always the case. At times the Father does not have parental responsibility, or at times the surviving parent may not have the care of their children for child safety reasons.


In extreme circumstances where certain conditions can impact the safety and welfare, the surviving parent might not get custody. There is no legal presumption that the surviving parent receives child custody after the child custodian dies.

Can a biological father obtain child custody after the death of a custodial parent?


Yes. A biological father may obtain child custody when the custodial parent dies. If the mother has child custody and the father has contact, he may get child custody. However, the father must have parental responsibility. For same-sex couples, if one parent dies while the other has only contact with the child, the surviving parent may obtain a full live-with-child arrangement order (custody, as it is known in layman's terms).



Parental responsibility is a crucial factor in this decision. Parental responsibility means that the father married the mother at the time of the child's birth, has his name on the child's birth certificate, and has a receipt of paternity acknowledgement from the courts or the mother. When the father hasn't established paternity, they have to complete a paternity test through the court to obtain child custody.

When would a surviving parent not be entitled to child custody after the other parent's death?

In some cases, the courts might choose to deny the surviving parents custody over a child. Several possible reasons why a court might decide to enforce such a drastic measure.

Firstly, the courts might deny child custody to the surviving parent when such a decision would cause detrimental impacts to the well-being of the child. It may also result from risk indulgence behaviours such as drinking or drug use, which may be tested by the court, terminal illnesses that prevent the surviving parent from caring for the child, or violence.


When the court ascertains that a surviving parent has psychologically or physically harmed the child. Children may suffer psychological or physical harm as a result. In these instances, the courts wouldn't give custody to that parent. A child faces dangers to their safety and wellbeing.

Furthermore, the surviving parent may not have child custody if they terminate their parental responsibility by allowing a stepparent to adopt the child. Child adoption usually eliminates any biological father's rights to the child. They also include the right to obtain custody when the custodial parent dies.

Are a child's wishes considered if a parent dies when a child is old enough to decide?


Depending on the child's age, if very young, sometimes the courts may see children as incapable of making their own decisions. However, when the child is old enough or mature to make decisions, they can express their wishes and feelings as to who they would like to live with. As per the Child Act 1989, the Court is obliged to consider (not necessarily accept) the Wishes and Feelings of the child. However, the courts also consider if this decision is in the best interests and welfare of the child.

Who else may be entitled to the child after the death of a parent?


When a custodian parent dies, in the case of separated parents, there are several options for the child in addition to the surviving biological parent, however, the surviving parent or anyone else with Parental responsibility is the first consideration legally. Aunties, family friends, grandparents, cousins, uncles, and even very close family friends may also apply to obtain the child's custody. When there are no alternatives or these alternatives fail to meet the set requirements, the courts may ask the child to be placed in the care system. This option may place the child in Foster care.

What happens to child custody after the death of both parents?

Child custody cases become complicated when both parents of an underage child die. Legally, the courts take care of this child until they decide on a guardian. At this juncture, the court looks at the parents' will if they had mentioned a possible guardian.


If there is a will, the courts would consider the parents' wishes if it outlines who the guardian would be.


Child custody after the death of both parents where both parents have made contrasting wills?

It is no new scenario where parents had contrasting wills at their deaths. In such cases, the courts often follow the parent's wishes who died last. However, in other instances, the courts may choose to intervene where contrasting wills are present.


As much as choosing a guardian is important in a child custody case, the child's best interests supersede any other consideration. Hence, the courts may choose to decide which guardian is the best. The courts consider the welfare checklist as in Section One Subsection 3 of the Child Act 1989 and base their decision on the child's welfare and the best interests.


What happens to child custody after the death of both parents IF there is no will?

Often, courts face cases where children are left orphans and with no will to direct their new guardians. In such situations, the courts are left with the decision to award custody to a suitable guardian. The courts then choose a guardian based on evidence provided at a court hearing.

The courts ensure that the guardian will cater to the child's wellbeing and needs before awarding the custody. Sadly, even if there are uncles, aunties, or grandparents present, they may not be an automatic pick for custodial duties when both parents have died. Often, the courts look at the person closest to the child and whom the child spent time with and is / is close to.

In the absence of family members and close relatives, the courts may also pick close family friends as possible child guardians. The court also considers where the child will live and what option causes the least disruption of the child's life, including the impact on their lives and education.

Will the court consider relatives and family friends as suitable for child custody after the death of a custodial parent?

Yes. The court might consider relatives and family friends suitable for child custody when the custodial parent dies. Willing relatives are the first to consider when a child is left orphaned, and there is no will.

However, if the custodial parent dies and there are no close relatives, the court may consider willing and able third parties like close family friends or other family associates. But the court first becomes satisfied that the third party and the child have an established relationship. The court must also ensure that awarding child custody to a third party upholds the welfare and safety of the child as per the Child Act 1989.

Can parents nominate someone to take child custody after the death of a parent without a will?

Most parents do not consider a will until later in the future. This decision may have several reasons, including uncertainty of their relationship in the future or the belongings or assets they will leave behind. However, a parent may nominate a guardian without a will, which is also legally acceptable.


The parent must appoint the guardian, draft an agreement in writing, and have two witnesses execute the written document to make such an arrangement. The agreement can be presented to the court for consideration.


There is no legal advice in this article, and it should not be considered legal advice.


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This Article is NOT legal advice and should not be considered legal advice.