Life After Death – What if I don’t want my children to live with my ex-partner?

In a world of changing family set ups there are now more single parent families than ever before. I have often been approached by a parent who has children living with them and asked where their children would live if that parent passed away. Sometimes the parent concerned has genuine reasons to be fearful of their children going to live with the other parent, particularly in cases where there has been domestic violence or other abuse.

In this country you firstly have to look at who has something called “parental responsibility” for the children. The mother will always have parental responsibility but the father will only have it if he was married to the mother or if he was not married but he was named on the child’s birth certificate and that birth was registered after 1 December 2003. Alternatively the mother might have signed a parental responsibility agreement awarding the father parental responsibility or the father might have been awarded parental responsibility by the Court.

In cases where both parents hold parental responsibility then upon the death of one of them guardianship of the children will pass to the surviving person with parental responsibility. In some cases this might not be considered morally appropriate, for example if the children have had nothing to do with one parent from a very young age and have no relationship with that parent and he or she has no desire to have a relationship with the children either. Alternatively, the surviving person might be a person with a long history of criminal convictions for offences involving violence or abuse and it might not be safe for them to have children living with them.

Where one parent is worried about where the children will live should that parent pass away they should seriously consider making a Will. They can attach to that Will something known as an expression of wishes setting out details of the person or persons that they would want their children to live with in the event of their death. They can also record in writing details of why they do not consider the other parent to be a suitable carer for their children. The people who have been named as potential guardians should be made aware of the parent’s wishes.

If a dispute were to arise following the death of one parent then the person who has been named in the Will can apply to Court for an order that the children should live with them. A decision will be made based upon what is considered to be in the children’s best interests and this is determined according to a welfare checklist used by the Court. It can never be guaranteed that the Court will make an order in favour if the person making that application but their case is likely to be stronger if they have an expression of wishes from the deceased parent as opposed to them having to merely rely on conversations that occurred before their death.