Who Gets Custody If a Parent Dies?

Part of: Child Custody Specialists

Who gets custody if a parent dies? Usually the surviving parent, as long as that parent has parental responsibility. A guardian named in writing by the parent who died can take over, sometimes straight away. Where nobody has parental responsibility, or the family cannot agree, the family court decides, and the child’s welfare is its paramount consideration. “Custody” is the word most people search for; the law in England and Wales talks about parental responsibility and who a child lives with. This guide explains both, and covers England and Wales only.

From our complex children specialist
Hannah Overton is Kabir Family Law’s complex children specialist. She works daily with parents, grandparents and wider family on child arrangements disputes and on matters involving the local authority or Cafcass, helping families get ready for Children Act proceedings from the first application to the final hearing.

Key takeaways

• A surviving parent with parental responsibility can simply carry on caring for the child. No court order is needed unless someone challenges it.
• An unmarried father only has parental responsibility if he was registered as the father from 1 December 2003, signed a parental responsibility agreement with the mother, or has a court order (Children Act 1989, s.4). After the mother’s death an agreement is no longer possible, so he would need to apply to court.
• A testamentary guardian named in a will or a signed, dated document takes over when no parent with parental responsibility is left, or straight away if the parent who died had a child arrangements order saying the child lived with them (s.5).
• Grandparents, godparents and other relatives have no automatic rights. Some can apply to court without permission; others need permission first (s.10).
• Money: whoever is bringing up a child whose parents have died may be able to claim Guardian’s Allowance on top of Child Benefit, and a surviving partner may qualify for Bereavement Support Payment.

Who gets custody if a parent dies?

The answer turns on who has parental responsibility, the legal term for the rights, duties and authority a parent has for a child. When one parent dies, parental responsibility does not pass to relatives. It stays with anyone who already had it, and it can be acquired by a guardian or through a court order.

If the child’s parents were married to each other, or civil partners, when the child was born, both had parental responsibility (s.2(1)), so the surviving parent keeps it and can continue to care for the child. Where more than one person has parental responsibility, each can usually act alone (s.2(7)).

The common situations in England and Wales:

• Parents were married or civil partners when the child was born, and one dies. Who normally looks after the child: the surviving parent, who has parental responsibility. What has to happen: nothing, unless someone applies to court.
• Unmarried father with parental responsibility (registered as father from 1 December 2003, agreement or court order), and the mother dies. Who normally looks after the child: the father. What has to happen: nothing, unless someone applies to court.
• Unmarried father without parental responsibility, and the mother dies. Who normally looks after the child: nobody automatically. A guardian named by the mother takes over (s.5(7)(a)). What has to happen: the father can apply for parental responsibility and a child arrangements order; relatives may also apply.
• The parent who died had a child arrangements order saying the child lives with them, and had named a guardian. Who normally looks after the child: the guardian’s appointment takes effect on the death, alongside any surviving parent with parental responsibility (s.5(7)(b)), unless the order also named the surviving parent as someone the child lives with (s.5(9)). What has to happen: if the guardian and the surviving parent disagree about where the child lives, either can ask the court to decide.
• Both parents die and a guardian was named. Who normally looks after the child: the guardian, who gains parental responsibility (s.5(6)). What has to happen: nothing, unless someone applies to court.
• Both parents die and no guardian was named. Who normally looks after the child: nobody has parental responsibility. What has to happen: a relative or friend applies for a guardianship order, a special guardianship order or a child arrangements order; meanwhile the local authority must provide accommodation for a child with no one who has parental responsibility (s.20(1)(a)).

If a mother dies, does the father automatically get custody?

Only if he has parental responsibility. A father who was married to the mother when the child was born has it automatically. An unmarried father has it if he was registered as the child’s father on or after 1 December 2003, if he and the mother made a parental responsibility agreement in the prescribed form, or if a court has ordered it (s.4(1)). A father with parental responsibility can care for the child without applying to court, although anyone who is concerned about the child’s welfare can still apply.

A father without parental responsibility is in a weaker position, but he is still a parent. He is entitled to apply for a child arrangements order without the court’s permission (s.10(4)), and can apply at the same time for parental responsibility. A parental responsibility agreement needs the mother’s signature, so after her death that route has gone.

If there is doubt about whether he is the father, the court can make a declaration of parentage (Family Law Act 1986, s.55A), and in proceedings where parentage is in question it can direct scientific tests (Family Law Reform Act 1969, s.20); see our guide to paternity testing. Our guide on whether a father can put himself on the birth certificate explains registration in more detail, and how to apply for parental responsibility covers the court route.

Having parental responsibility does not settle the question if someone else applies for the child to live with them. The court’s paramount consideration is the child’s welfare.

What is a testamentary guardian? Appointing a guardian in a will

A guardian appointed in a will, or in any signed and dated document, takes over on the parent’s death only if no parent with parental responsibility is left, or in the special cases listed below; otherwise the appointment waits until there is no such parent (s.5(7) and (8)).

A testamentary guardian is a person a parent chooses to look after their child after their death. Any parent with parental responsibility can appoint one (s.5(3)). The appointment does not have to be in a will: it only has to be in writing, dated and signed by the parent (s.5(5)). Two people can make a joint appointment (s.5(10)), and a later appointment normally revokes an earlier one unless it is clearly meant to add a guardian (s.6(1)).

When the appointment takes effect matters as much as who is named:

1. Straight away on the death, if the child then has no parent with parental responsibility (s.5(7)(a)).
2. Straight away on the death, if the parent who made the appointment had a child arrangements order saying the child lived with them, or was the child’s only or last surviving special guardian (s.5(7)(b)). This does not apply if the order also named the surviving parent as someone the child lives with (s.5(9)).
3. Later, in every other case: the appointment waits until the child no longer has a parent with parental responsibility (s.5(8)).

Once the appointment takes effect, the guardian has parental responsibility for the child (s.5(6)).

How to appoint a guardian for your child

1. Choose someone and ask them first.
2. Put it in writing, date it and sign it. It can be in your will or in a separate document, but an appointment that is not in writing, dated and properly signed has no effect (s.5(5)).
3. Tell the person you have named, and keep the document where it can be found.
4. Review it if your circumstances or theirs change. A later appointment normally revokes an earlier one (s.6(1)).

Writing the document is the easy part. The judgement calls are whether the appointment would take effect straight away or only after the other parent (see the list above), how it fits with any child arrangements order, and what happens if family members disagree with your choice. Those are worth checking with a specialist while you can still change the document.

Do godparents get custody if parents die? Relatives’ rights

Being a godparent, grandparent, aunt or uncle does not in itself give any legal right to care for a child. Grandparents have a dedicated guide: grandparents’ rights when a parent dies. For any relative there are three ways in:

• Being named as guardian by a parent with parental responsibility, as above.
• Applying for a child arrangements order. A relative the child has lived with for at least a year immediately before the application can apply for an order about where the child lives without asking permission first (s.10(5B)), and so can anyone the child has lived with for at least three years (s.10(5)(b)). Others need the court’s permission, and the court looks at the kind of application, their connection with the child and the risk of disrupting the child’s life (s.10(9)).
• Applying for a special guardianship order, which gives parental responsibility that the special guardian can exercise to the exclusion of other people with parental responsibility, apart from another special guardian (s.14C).

Where nobody has parental responsibility, the court can also appoint a relative or friend as the child’s guardian on their application (s.5(1)). Our guides to special guardianship orders and kinship care go into each route.

Step-parents. A step-parent does not gain parental responsibility just by being married to the child’s parent or by bringing the child up. If they already had it through a parental responsibility agreement or court order (s.4A), they keep it, because it can only be ended by a court order (s.4A(3)). A step-parent who was married to, or the civil partner of, the parent who died can apply for a child arrangements order without permission where the child was treated as a child of the family (s.10(5)(a)). Our guide to step-parent responsibility has more.

Keeping in touch. A surviving parent is not obliged to arrange contact with grandparents, but grandparents can ask the court for permission to apply for a child arrangements order. See grandparents’ rights and contact orders for grandparents.

If both parents die: who can apply for a guardianship order?

If either parent named a guardian and nobody with parental responsibility is left, the guardian takes over on the second death (s.5(7)(a)). If no guardian was named, nobody has parental responsibility for the child. Someone close to the child, often a grandparent, aunt or uncle, then needs to apply to the court for a guardianship order, a special guardianship order or a child arrangements order. Any individual can apply to be appointed the child’s guardian where the child has no parent with parental responsibility (s.5(1)), and the court can also appoint a guardian in family proceedings even if nobody has applied for that order (s.5(2)). While that happens, the local authority has a duty to provide accommodation for a child in need who has no one with parental responsibility (s.20(1)(a)); in practice that can mean the child staying with a relative who is approved to care for them.

Who looks after the child and who inherits are separate questions. A will can name a guardian, but a guardian can also be appointed in a signed, dated document without a will. Inheritance itself is outside the scope of this guide.

Who looks after the child while things are decided?

Most children stay with, or move in with, the surviving parent or another family member straight away, and nothing formal is needed while nobody disagrees. A person caring for a child without parental responsibility may do what is reasonable in all the circumstances to safeguard or promote the child’s welfare (s.3(5)), which covers everyday care while longer-term arrangements are sorted out.

If there is a dispute, the court does not have to wait for a final hearing: it can make a child arrangements order at any stage of the proceedings (s.11(3)). If nobody with parental responsibility is left and no family arrangement is in place, the local authority must provide accommodation for the child (s.20(1)(a)). That can mean foster care, but the local authority can also approve a relative or friend as a temporary foster carer so the child can stay within the family (Care Planning, Placement and Case Review (England) Regulations 2010, reg. 24). Our guides to Regulation 24 placements and temporary child custody explain these arrangements.

How the family court decides

Whoever applies, disputes about child custody after the death of a parent are decided on the same principles. The child’s welfare is its paramount consideration (s.1(1)), delay is treated as likely to harm the child (s.1(2)), and it will only make an order if that is better for the child than making none (s.1(5)). When an application is opposed, the court works through the welfare checklist: the child’s wishes and feelings in the light of their age and understanding, their needs, the likely effect of any change, any harm, and how capable each person is of meeting the child’s needs (s.1(3)). It may ask Cafcass, or in Wales Cafcass Cymru, to report on the child’s welfare (s.7).

After a bereavement the child has already lost a parent, so continuity of home, school and relationships is often central to what the court looks at.

Money and support for the child after a parent dies

• Guardian’s Allowance is paid to the person bringing up a child whose parents have died, and in some cases where one parent survives. It is £22.95 a week per child, tax-free and on top of Child Benefit; you must qualify for Child Benefit, claim on form BG1, and it can be backdated for up to 3 months (GOV.UK).
• Bereavement Support Payment is for the surviving partner, not the child. You may qualify if you were married to, in a civil partnership with, or living with your partner as if married, and were under State Pension age. The higher rate applies if you were getting Child Benefit for a child living with you (GOV.UK).
• Child Benefit should be claimed as soon as the child comes to live with you.

Frequently asked questions

Do godparents have any legal rights?

Not as godparents: being a godparent gives no legal status. A godparent can care for a child if a parent named them as guardian, or if the court makes an order in their favour.

Can the surviving parent be stopped from taking the child?

Only by a court order. A surviving parent with parental responsibility can care for the child. A relative who is worried about the child’s safety can apply for a child arrangements order, with permission if they need it, and the court decides on the child’s welfare.

What happens to a child if both parents die without a will?

No guardian will have been appointed unless a parent signed and dated a separate appointment. Nobody then has parental responsibility, and a relative or friend needs to apply to the court. The local authority must provide accommodation for the child in the meantime if nobody else can.

Can I appoint a guardian without making a will?

Yes. A written appointment that is dated and signed by you is enough (s.5(5)). Keep it with your important papers and tell the person you have named.

Will the child go into foster care?

Only if nobody with parental responsibility is left and no one in the family can care for the child. The local authority must then provide accommodation (s.20(1)(a)), and it can place the child with a relative or friend it approves temporarily as a foster carer (reg. 24).

Can DNA testing prove paternity after a parent has died?

In court proceedings where parentage has to be decided, the court can direct scientific tests and the taking of bodily samples from the child, the person said to be the parent and the other parties, and the tests must be carried out by an accredited body (Family Law Reform Act 1969, s.20(1) and (1A)). Whether testing is practical in a particular case depends on whose samples are available. See our guide to paternity testing.

How long does the court take to decide?

It depends on the case. Under the Child Arrangements Programme, the first hearing should ordinarily take place in week 5 after the application is issued, and at the latest in week 6 (Practice Direction 12B, para 14.1). After that, the timetable depends on the issues, and the court must bear in mind that delay is likely to harm the child’s welfare (s.1(2)). Some court areas run a different Pathfinder process (GOV.UK). If a child’s safety needs an urgent decision, see our guide to emergency child custody orders.

A parent has died and people disagree about the children? Get advice before anyone applies

In the weeks after a death, families make quick decisions about where a child sleeps, who does the school run and who signs forms. Those arrangements can be hard to change once they have settled, and a guardian appointment that is not in writing, dated and properly signed has no effect. Book a free initial consultation with our child law specialists before you apply to court or agree to hand a child over.