Are you separated with kids, perhaps from more than one relationship? Something you have no doubt asked yourself from time to time is, what will happen to your kids if something should happen to you? Is it enough to simply specify your wishes about guardianship in a Will?
The situation becomes very complicated when parents are separated with children from more than one relationship. A recent court case involving a young mother with children to three different fathers highlights the difficulties of the situation.
When the mother died in a car accident, she and her children had been living with the father of one of the young children. However, the maternal grandmother sought guardianship of the children and it was left to the courts to work out what living arrangements would be in the best interests of the children. Only one of the children’s fathers engaged in legal action over the children’s guardianship, and the court ultimately determined that the children should all live with this father.
The matter had been complicated due to the sibling relationships, inter-parental and grandparental relationships, as well as animosity between the parties, including the ‘subtle undermining’ of the father, in which the grandmother had engaged. Ultimately the judge ruled that the father had played a primary role in the lives of the children – including those who weren’t his biological children – and maintaining this stability was considered of vital importance in this particular case.
The judge decided it was in the children’s best interests to continue to live with the father and for the grandmother to have access on alternate weekends and significant holidays and dates such as the mother’s birthday and the anniversary of her death. The father was also granted sole parental responsibility, with the requirement to confer with the grandmother on issues, but in the end to be the final decision-maker.
The case highlights the complexity of situations involving children of different fathers or mothers. It emphasises the importance of having clear orders in place for the care of the children. And it demonstrates that, while having a Will in place to appoint a guardian for your children is desirable in that it makes express your own wishes, such Will is not in fact able to override a decision made ‘in the best interests of the child’ by the court.
Should you need assistance with a child custody dispute, including in a situation where a parent has passed away, please contact Alliance Family Law to discuss your specific circumstances.
