Can my stepchildren stay with me if my partner dies?

If your partner dies, and your stepchildren were in their primary care, what happens?

This is a complicated legal matter because there is no one, simple, straight path to the answer.

The outcome will rely on considerations under family law, succession law and potentially child protection and domestic violence laws, depending on the parents and circumstances involved.

Things that can factor into what happens to children when their primary parents passes away are:

  1. Whether their other legal parent is still alive;
  2. Whether that other parent would be willing and able to care for the children;
  3. Whether there are family law orders already in place and what they say;
  4. Whether there are child protection orders in place around the other parent;
  5. Whether there are domestic violence orders in place around the other parent;
  6. Whether the deceased parent had a Will;
  7. Whether the deceased parent had appointed a guardian under that Will; and
  8. What care arrangements would be in the children’s best interests.

There are instances in which you may have been one of the primary carers of the children, the Will appoints a different guardian, and the other parent who was estranged will come out of the woodwork.

The main thing to remember is that none of these people will have an automatic right to primary care of the children and that all parties will need to work through the necessary legal processes to have parental responsibility or legal guardianship rights appointed to them.

Although the other parent may hold prima facie legal rights according to their name appearing on the birth certificate, they may be prevented from having contact with the children under other court orders.

You may have been a primary carer, but perhaps you have a poor relationship with the children, or it is only new and recent and they were previously very close and connected with another person.

The guardian under the Will may not want to have care of the children as their circumstances have changed since the Will was drafted many years ago.

The best course of action is to seek urgent legal advice around your specific situation so that you can determine the most appropriate path for you and the children involved, prioritising the needs and interest of the children, who have just lost a parent, at the forefront.

JP x

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