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Question regarding spending time with step-parent if biological parent passes away

Step-parents and spends time with

Hi

Just a bit of a query on behalf of others. It is in regard to what happens if one parent dies, and any future contact that the step-parent may have.

Say for instance a parent passes away. Does that mean that the step-parent automatically has the same level of contact with the child that the biological parent had? Add to that, what if, the biological parent made the step-parent a guardian of the child in their will, does that mean that the step-parent automatically has the same level of contact AND decision-making that the biological parent had.

And are the answers different if half-siblings i.e. child/ren of the biological parent and the step-parent are put in the mix?

Or does this go the same way as most other applications go, and first step is mediation, then down the court route?

I have my own opinion on how this goes, but would like to hear from some others.
My understanding is that there is no obligation for the biological parent to maintain contact with a step parent or their offspring in the event of the death of the other biological parent. Orders are binding on the biological parents - they don't move across to the step-parent in the event of death of one of the parties.

I believe that biologically related children may have Family Law proceedings bought on their behalf to set up arrangements for their ongoing contact, in the same way that grandparents etc can be parties to Family Law proceedings. I think the best thing would be to set up mediation between the parties in the first instance, assuming you couldn't make arrangements amicably.

Stepfamilies are difficult though. Often stepparents do not have good relationships with the other biological parent, and they could argue that there is no benefit to maintaining that relationship for the child in an environment of conflict. Especially if there are no other children involved (half siblings for example). If the remaining biological parent does not have a good relationship with the stepparent, then it would be very difficult to implement any kind of care arrangement too. We all know how long proceedings can drag out even for biological parents.
While the case did not involve a step parent but rather a grandparent, Her Honour Ryan’s discussion in Russel & Russel and Anor [2009] FamCA 28  (paragraph 123 onwards) ‘Do the 2006 Amendments to Part VII of The Family Law Act elevate parents above others when determining a child’s best interest?’ provides an excellent insight into the presumptions in Family Law since the amendments, more specifically in relation to cases involving parents & significant others (i.e. if there have been any changes to the pre 2006 presumption of there being no preference in favour of parents in parenting disputes).

Of course, The Best Interest of The Child (formally called ‘welfare of the child’) forms a main part of Justice Ryan’s discussion given it is and has always been the paramount consideration in Family Law.

With regards to step parents there are 2 main options.  (3 if you include mediation)
  1. Make an application to the Family Courts for orders under Part VII of The Act
  2. Make an Application to the Family Court for permission (leave) to apply for Adoption (State Jurisdiction)
While mediation would definitely be a good starting point, if this doesn’t work and while there is no guarantee as to the outcome of the 1st option, in my view, it is far more preferable than option 2 given Adoption is far more complex, time consuming and will only be considered where exceptional circumstances can be established.

Where death of a biological parent is concerned, even in a 'Blended Family', regardless of what that parent has said in relation to future care arrangements for the children in their Will, unless there is no other parent (e.g. also through death) or parental responsibility has been removed by Court Order from the other parent (for whatever reason – although this could be reinstated by a Court too) then all responsibility and decision making about the child’s current and future living arrangements, and any other decisions (unless there are Court Orders specifying otherwise) is theirs.  Not that of the step parent.

Again while a step parent might be able to provide the Court with additional evidence to consider, such as biological half siblings, role they have played in the child/rens life, biological parent’s wishes et al any decisions and/or Orders of the Court as you know, will always be based on BIC.

As a side note.  While I can appreciate parents would like to ensure that their children are well cared for in the unfortunate circumstance of parental death, unless there is some reason the other parent could not look after the child, or nominating a guardian is a necessity, then it would be my view that the inclusion of a child in a Will (unless of course it relates to them being a beneficiary) is highly inappropriate.  Children are not property!

 

Last edit: by SWAMBO


Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
Thank you Malady and Swambo for your responses. They are along the lines of what I thought.

Swambo, as far as I can tell, the inclusion of the child in the will was just in reference to the deceased biological parent appointing the step-parent as guardian to the child. And as I was thinking, giving that there would still be one biological parent remaining, then the appointment of a guardian for said child seems to be a moot point. It might be relevant if both biological parents were to become deceased at the same time, and the other had not will, but the chances of that are so slim, that it really is not a consideration.

Adoption as an option would probably not even enter into the equation in the scenario that I was alluding to. It being more in regard to shared care arrangements, rather than a child living with/spending time with only one parent.

Thanks for you input.
Boots
Couldn't agree more about children not being included in Wills as if they were property SWAMBO.
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