Automatic Guardianship

It is pretty common knowledge that under traditional family circumstances where there is a married couple living together with kids as a family unit then when one of them dies the lawful guardianship of the children in England and Wales automatically passes directly to the surviving spouse.  The same rule applies for married couples when it comes to jointly adopted children.

When a mother and father who are not married have children together and live together with their kids as a family unit they are classed as joint guardians.  Upon the demise of one of the parents then the living parent will automatically become the sole guardian.  For the father it would be subject to the fulfilment of the English and Welsh rules for parental responsibility; otherwise this will end up being a legal formality that will need to be dealt with and sorted out after the mother’s demise.

When parents are divorced and one of the parents have in England & Wales been granted custody of the child or children via a Child Arrangements Order, then should the parent granted custody die the automatic right to sole guardianship normally granted to the surviving parent may not necessarily occur.  In the event that the custodial parent appoints a guardian in their English or Welsh Last Will and Testament then the guardian essentially replaces that parent meaning the custody of the children is then shared between the living parent and the newly appointed guardian.  Hopefully they can agree on the custody arrangements that will best support the well being of the child/children.  Failing this then it would be up to one of them to create a settlement to the matter by making an application for a Child Arrangements Order; meaning the English or Welsh court decides.

Sometimes one parent could have had a strong objection to the other parent ever having anything to do with their child.  While this parent is alive the other parent could have kept away from the child in a bid to keep the peace and retain their distance from the opposing parent or alternatively fought for their access rights to see their child.  In the second event it is most likely that a settlement could only have been brought about by the court and in doing so the court would be aware of all issues surrounding the situation when considering their verdict in relation to an English and Welsh Child Arrangements Order that they would have created at that time as a settlement to the matter.

A parent’s objection could be so strong that even upon their death they may want to keep their child away from the other parent.  Obviously in their bid to do this they would allocate a guardian to take over from them when they are gone.  This in itself will not exclude the other parent from the children.  If their reasons for excluding the other parent are based on the protection and best interest of the child they could add strength to fulfilling their objective by creating a letter with these reasons clearly spelt out and retain it with their Last Will and Testament.  In the event of any custody dispute this letter can be presented as supporting evidence towards their case.  If their case is definitively that the child’s safety and well being would be in jeopardy; such as that parent has a history of violence, a serious drug addiction, perhaps an alcohol addiction or any other issue that would cause concern then this would definitely validate their case.  If the accusations within the letter are obviously true, or found to be true, then the court will support their decision as their concern is for the best interests for the child.

Some family situations can be quite complex when it comes to under aged children.  For instance two adults live together and have both brought their under aged children from a previous relationship with them; often complicated further by having more children together.  Should one of the parents in this situation die then the complexity of guardians, parental rights, grandparents, half brothers and sisters, family unit and overall well being of the children gets extremely complex.  In the ideal world it’s possible for the family unit to remain as it is and other parties continue on in the same way.  However it is unlikely to flow that easily and complexities of custody could ensue.  The courts will have a tricky time in unravelling the situation if they are called in to sort out the situation.  It is likely also that due to the complex family ties and practicalities that are to be considered that social services would be called upon to get involved to assess the situation for the children more deeply and put forward to the court their findings if necessary.


Introduction To Intestate
Appointing An Executor.
Rules Surrounding Guardianship
Selecting Your Guardian
Automatic Guardianship
Appointing A Guardian
Parental Responsibility
Changing Guardianship
Money For Child And Guardian
Inheritance Tax