Loading...

What if a parent dies before parenting arrangements are finalised?

3 August 2020

An unfortunate but sometimes real situation is when parents are in dispute in court about arrangements for their children and one of the parents dies. What happens then? It’s not what you might automatically assume.

A recent court case considered such an issue.  In that case, the parents were in court disputing the parenting arrangements for their 3 children aged 12, 10 and 7 years of age.

Unfortunately, the mother passed away during the proceedings due to an ongoing ill health. It was the father’s position that the children should then come and live with him.

The Family Law Act provides that if a court order is in force that provides that a child is to live with one of the parents and that parent dies, if the order does not provide what is to happen on the parent’s death, then it is not simply the case that the surviving parent can require the child to live with him or her.

Even in circumstances where parents have ‘equal shared parental responsibility’, parental responsibility does not mean that the surviving parent can then unilaterally decide, if the other parent has died, where the children should live.

Of course that surviving parent may apply for a parenting order that deals with where the child lives and the court at that time would need to consider the best interests of the child.

This is certainly something that should be contemplated when there is one party who is ill and there are current proceedings on foot or indeed, when there is a known health issue for one of the parents and there are orders being entered into about the parenting arrangements.

In this case a relative of the fathers had expressed interest in caring for the children however she did not file an application and therefore despite the court having said she could participate, she ultimately didn’t. The court made an interim order for the father to have sole parental responsibility for the children and that they live with him.

When it comes to parenting arrangements, it is important to consider every situation that may arise including the worst-case scenarios. To clearly understand what may happen in a situation and what you can do in advance to achieve the best possible outcome for your children, please seek professional legal advice.

To speak with one of our experienced Family Lawyers in Brisbane today, please call (07) 3221 4300 or fill out our form online to arrange your initial fixed-fee consultation.

What if a parent dies before parenting arrangements are finalised? Accompanying image: father holding hands of child
2021-11-05T15:45:09+10:00

Client Testimonials

I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
Your newsletters are great, I appreciate them.
K.B., Carina
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point
Your team is professional, warm, friendly and real.
N.R., Crows Nest
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson

You, guys, provide extraordinary service.

A.O., North Brisbane

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong

I was always confident that I was getting the very best advice.

T.S., Flinders