Donate Child Support Calculator
Skip navigation

Death of Parent with Full Custody - Queensland

Add Topic
In this situation the mother has full custody with the father for the past 5 years having parenting orders for access with 1st and 3rd weekends, half school holidays and 2 phone calls a week.  The father has previously sort through mediation to increase his time with the children now they are older however the mediators gave up on her as she was becoming aggressive and accusing the mediators.  The father didn't want to put the children through a court situation so left the orders as is.

The mother has confirmed in that she is terminal. Currently due to her illness the father has agreed to suspend current parenting orders and has only seen one child 4 hours in the last 4weeks, he also gave up christmas access to the children as it maybe their last christmas with their mother.  The situation is very sad for the children and the father just wants to support then.

In a new medaition session the mother has indicated that the children are to go to their aunt and uncle (already have 2 children). Using the limited access of the father to the children the mother has began transiting the children to her preferred situation.The key question is does custody automatically got to the other parent when the parent with fullcustody passes away.

Custody of Children after parent with full custody passes away - Queensland

In this situation the mother has full custody with the father having parenting orders access (5yrs). Access was 1st and 3rd weekends, half school holidays and 2 phone calls a week. The mother has confirmed in mediation that she is terminal. Due to her illness the father has suspended weekend access with the children and has current seen one child 4 hrs over the last fours weeks, he also gave up christmas access to the children. This is a very sad situation for the children and the father want to support them.  In the mediation session where she confirmed her illness she also stated that she wanted the children's custody to pass to her sister and husband(2 children of their own). See was not forth coming with reasons.

With the fathers restricited access she has been using this separation time that the father accepted in good faith to transition the children to her sisters care.

Can anyone provide information as to the law around childrens custody following death in this situation?
Hi custodylaw?

My understanding of this is that the father, as next of kin, would automatically have full care of the children after their mother passes. The sister and husband are not able to have the mother's care level "transferred" to them unless the father agrees.

If I am wrong I'm sure someone will correct me - but a lawyer I spoke to about having my children go to my parents if something happened to me said my parents would have to pursue a level of care through consent or court-issued orders (despite the fact that my children spend more time with my parents than their father - his choice not mine).

"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:
Not entirely true Tulip…



This is covered in the Family Law Act 1975 (Sect 65K).

It states:

What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives

              (1)  This section applies if:


                      (a)  a parenting order is in force that provides that a child is to live with one of the child's parents; and


                      (b)  that parent dies; and


                        the parenting order does not provide for what is to happen on that parent's death.


                (2)  The surviving parent cannot require the child to live with him or her.


               (3)  The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.


               (4)  In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.


So, it appears that the Aunt and her Husband have a right to apply for Parental Responsibility of the Children (particularly if they are part of the Children's lives).

I guess the Mum can also convey her wish for this to happen in her Will.

She may also make her Sister an executrix which would also grant her the power to control any monies that the Mum leaves behind until the children are 21 (or 18 in some cases).
I knew if I was wrong someone would be able to correct me!  :$

So, it appears that the Aunt and her Husband have a right to apply for Parental Responsibility of the Children (particularly if they are part of the Children's lives).

I guess the Mum can also convey her wish for this to happen in her Will.

We all know that applying through the courts can take considerable time, so wouldn't the next of kin (ie the father in this case) be entitled to have the children in his care? After all, the mother can "wish" for the kids to live with her sister all she wants, but they are not property or items that CAN be allocated in a will.

"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:
Yes regardless Plus 1 the court has to consider any other significant persons in the lives of the children as well as the parents and what is the best interest of the children.

I think if the father puts up a good case to show that he can care for his his kids full time and provide for their emotional needs, then I can't see why he would not gain greater, majority or even sole care.

Any monies or assets put aside for the children for their future by the mother can be preserved however the income generated from these assets can be accessed after three years by anyone for the children. Best to check the laws for your state on this. The mother should be making sure she has a water tight will.
Hi Tulip - See that's where it gets tricky.

It states that he can't "require" the children to live with him so NOK or not NOK, the Children aren't automatically required to live with him.  

I grilled my Lawyer about this when I got my Will drawn up because like you, my child has very little to do with the Father and my Family look after the child when I'm not there (which is generally 60+ hours a week).

He said that I could put it in my Will however, with respect to the Orders, it falls under "significant change in circumstance" and the Dispute becomes 'live' again however, my ex can't just pop round after I've died to collect the Child.. doesn't work like that because of the aforementioned.

I'm not suggesting that Children are property at all. In my case, I've listed an Executor (Family Member) and Guardian of my child so that my "wishes" are noted and my estate will be entrusted to them to hold until my child turns 21.  I know that in terms of "Lives with Status" the Courts will decide what ultimately happens, but I figured it was better putting it in rather than leave it out.

At the end of the day, it all comes down to that old Chess Nut of what's in the Best Interest of the Child. 

Fairgo said
Any monies or assets put aside for the children for their future by the mother can be preserved however the income generated from these assets can be accessed after three years by anyone for the children. Best to check the laws for your state on this. The mother should be making sure she has a water tight will.
  How does that work? Are you suggesting that if an Executor has been appointed and they invest the money entrusted to them that anyone can access this if its deemed "for the children"?
Didn't think you were suggesting children were property Plus1, just trying to get my head around all this - especially when it appears the legal advice I had was off the mark.

Fairgo, I'm also interested in knowing more about the three year thing as I hold money my children inherited in a trust for when they turn 18 and it would be quite concerning if their father could attempt to access this inheritance on some trumped up excuse.

"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:
That's right so if the father takes the children full time then the Aunt and Uncle will have to take him to court to sort it out.

I'm quoting WA laws here so best to check with your state laws if you are not in WA.

Regardless in the case above if for example the father was to get full care and in the future say he went bankrupt, I'm sure he could access anything for the kids that was put away for them from his ex.

I think you should get professional legal advice on this.

I'm assuming the OP will get straight onto some serious legal representation to get the mechanics of this issue underway ASAP, as it seems that nothing is certain in terms of his his ability to take them into his care upon the death of the resident parent.

Here's an interesting question:

If the mother dies before he has been able to sort out any concrete plan of action, and the aunt and uncle are there at the time or have the children in their care when it happens, is the father going to have to go through the court system to get the kids from the aunt and uncle, or will they go to him (as next of kin) in the interim whilst the proceedings play out? I wonder if this situation will be more difficult  for the father the longer the children spend in the care of the aunt and uncle? Will there be some validity to the "status quo" argument if they have already been spending significant time with the aunt/uncle even before the mother's death?

Custodylaw - I know this is a difficult time for your children, but given that having your children passed onto you is after their mother's death is not a certainty, I think your best bet would be to start on the legal work immediately. Get some good legal advice, see what your options are, and if at all possible, start the process of attemping to ensure their residency with you NOW. The mother clearly doesn't want the children to live with you when she dies, and I would bet my last dollar she has procured professional legal advice as to how to make this happen, so any moves she is making toward "transitioning" the children to their aunt and uncle, are probably clearly calculated around meeting that goal. This doesn't have to be a conflictual situation - simply express that you feel you can give the chidren the life they deserve, will happily allow them regular access to the mother's family, and you are taking steps to go about applying for care. Maybe if you are compassionate and supportive of the ex, and can have a conversation with her about what she wants for the kids in life and how you can help to see it through, she might even feel more secure about them being with you when she goes. Of course, this depends on your relationship and communication level. But mediation would obviously be the first step. Tricky situation. Best of luck!
The mother is clearly transitioning the children  to ensure the father is denied lives with status.

Now is not the time to play nice she clearly isnt.

Go to court and seek lives with status  now as her medical condition is on the decline and her ability to care will lessen as the decline continues

If you want to play nice facilitate as much time as the kids would like with their mother as they like.

May seem like a callous thing to some however doing this ensures your children a future with a parent not a gaurdian, also stops your children being coerced into saying they want to stay with anyone but you.

The advice I was given is that despite living several thousand kilometres from me my children would live with me and anyone else would have to seek orders to change this. Transitioning is a very clever way to gain an upperhand in the court matter after she passes.

I am not amazed beyond belief that an ex would want to control someone's life even beyond there death and that in itself is how sad our family law and child support situations have become.

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)
Guest said
In this situation the mother has full custody with the father for the past 5 years having parenting orders for access with 1st and 3rd weekends, half school holidays and 2 phone calls a week. The father has previously sort through mediation to increase his time with the children now they are older however the mediators gave up on her as she was becoming aggressive and accusing the mediators. The father didn't want to put the children through a court situation so left the orders as is.

The mother has confirmed inthat she is terminal.Currently due to her illness the father has agreed to suspend current parenting orders and has only seen one child4 hours in the last 4weeks, he also gave up christmas access to the children as it maybe their last christmas with their mother. The situation is very sad for the children and the father just wants to support then.

In a new medaition session the mother has indicated that the children are to go to their aunt and uncle (already have 2 children). Using the limited access of the father to the children the mother has began transiting the children to her preferred situation.The key question is does custody automatically got to the other parent when the parent with fullcustody passes away.

When you say "the mother has full custody with the father" - you mean 'joint parental responsibility"?

The father has 'parental responsibility' where or not the mother is dead or alive. And the mother can't assign her 'parental responsibility' to another in the event of death - not without the consent of the father.

The mother's sister/brother would need to make an application to the court.

In the event that the mother dies, the father wants the children, but the mother's brother/sister withhold the children, the father can make a recovery orders application.

4MYDAUGHTER
1 guest and 0 members have just viewed this.

Recent Tweets