Can a biological father claim parental responsibility after the mother’s death?

There are many different family set ups throughout England and Wales and many different legal aspects to consider. Family law covers a wide variety of situations and many of our queries are about children and confusion over parental responsibility of the biological father.

Parental Responsibility

All mothers automatically have parental responsibility of their children. Fathers can claim parental responsibility by a variety different ways including:

  • Being married to the mother
  • Have his name registered on the child’s birth certificate
  • Have a parental responsibility agreement with the mother
  • Obtaining a parental responsibility order from the courts

Having parental responsibility does not automatically guarantee the right for either parent to have contact with the child, or even to know the child’s whereabouts, but it can give a parent certain legal rights over the child, such as an influence over the child’s education or religion.

No legal father

In some cases, the biological father will choose not to apply for parental responsibility. If the parents are unmarried then the mother can not add the father to the birth certificate without his permission.

In these cases, the child will either not see the father at all or the parents will come to their own casual agreement about contact. A child does not need to have a legal father on the birth certificate or passport.

Some mothers may not want the child to have contact with their biological father or deem the father to be unsuitable or even dangerous and it is often the case that the biological father will not contact the mother or child for long periods of time, if ever.

These situations are remarkably simple from a family law perspective, unless the father applies for parental responsibility. However, a mother may worry about what will happen in the event of her death.

Can a biological father claim parental responsibility after the mother’s death?

The short answer is yes. A biological father will always be able to apply to the courts for parental responsibility. However, that doesn’t mean that they will be able to influence or even have contact with the child after the mother’s death.

A family court will always consider the welfare of the child first. This is the case throughout all family law and this situation is no different. If a biological father has been absent throughout the child’s life and the child is close to the mother’s family members or the people that the mother appointed as legal guardians, then the courts will respect this and do what is best for the child.

In the case of a child not knowing or rarely seeing the biological father or the father being unsuitable as a parent then if parental responsibility is granted after the mother’s death, the courts are likely to keep the influence and contact to a minimum, allowing the child to grow up with the mother’s family or chosen legal guardians.

For mothers who are concerned, it is important that you have an up-to-date and legal will. If you have any further queries, then you can book an appointment to come and see one of our family and child law solicitors in order to discuss your specific circumstances.

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