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There are many different family set–ups and, therefore, 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, particularly in the unfortunate event of the other parent’s death..
What happens when a parent dies? And if a mother dies, does the father automatically get care? We shed light on these questions and more, here.
Parental Responsibility
All mothers automatically have parental responsibility of their children. Fathers can claim parental responsibility in a variety of different ways, including:
- Being married to the mother
- Having their name registered on the child’s birth certificate
- Having 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. Parental responsibility can, however, give a parent certain legal rights over the child, such as influence over the child’s education or religion.
No Legal Father
In some scenarios, the biological father will choose not to apply for parental responsibility. If the parents are unmarried, then the mother cannot 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 their 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.
What Happens When a Parent Dies?
When a child’s parent passes, custody is usually passed on to the surviving parent, provided they have parental responsibility.
Surviving parents are often prioritised under these circumstances, with the belief that it’s in the child’s best interests to stay with them. This isn’t always the case, though, as surviving parents may not be the best fit.
If this is the case, the child may go to an appropriate family member, such as a grandparent. If that’s not possible, then the court may introduce social services, who will assume responsibility for the child’s welfare.
Can A Biological Father Claim Parental Responsibility After The Mother’s Death?
Yes, a biological father will always be able to apply to the courts for parental responsibility after the mother passes. However, that doesn’t mean that they will be able to influence or even have contact with the child after the fact.
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.
Family Law and Child Arrangements, From Us
For mothers who are concerned, it is important to have an up-to-date and legal will. If you have any further queries, you can book an appointment to come and see one of our family and child law solicitors to discuss your specific circumstances.
Nel Roberts
Associate Solicitor
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FAQs about Parental Responsibility:
What is parental responsibility?
Parental responsibility is all the rights and responsibilities that someone has to make decisions regarding their child/children in relation to all aspects of their life.
Parental responsibility is not the same as being the legal parent of the child. A child can only have two legal parents. However, there can be several people who could have parental responsibility for the child from grandparents, stepparents or the local authority (if the child gets removed from the parents).
Who gets parental responsibility?
All mothers automatically get parental responsibility of their children. Fathers can claim parental responsibility by being married to the mother, having their name registered on the birth certificate, having a parental responsibility agreement with the mother and obtaining a parental responsibility order from the courts.
When one parent dies, what happens?
In the situation where one parent dies, custody would usually get passed to the surviving parent, providing they have parental responsibility. But sometimes this wouldn’t be the best fit for the child. In these cases, parental responsibility might be provided to someone else.
