When a parent dies, the family may need to make immediate decisions about where the child will live, who may care for the child and who may make important legal decisions. These questions can become difficult when there is a surviving parent, a guardian named in a will, or relatives who have played a substantial role in the child’s life.
Child guardianship after a parent dies does not begin with deciding which adult should “get” the child. The first step is to establish who already holds parental responsibilities and rights, what arrangements were in place before the death and what will serve the child’s best interests.
This distinction matters because care, contact and guardianship are separate legal concepts. A person who has cared for a child for years may have an important relationship with the child without necessarily being the child’s guardian. Equally, a guardian named in a will does not necessarily displace another person who already has parental responsibilities and rights.
If the existing arrangements are unclear or there is conflict about the child’s immediate care, obtain advice about the legal position before changing the child’s residence or making major decisions on the child’s behalf. Vermeulen Attorneys assists families with children’s law matters following the death of a parent.
Child guardianship after a parent dies: what changes legally?
A parent’s ability to exercise parental responsibilities and rights ends when that parent dies. The death does not, however, erase the legal position that existed immediately before the death.
The surviving parent’s rights, the rights of another guardian and the effect of an existing court order or parental responsibilities and rights agreement must still be considered. A parenting plan, care arrangement or guardianship order may also contain relevant information about the child’s position.
Under the Children’s Act, parental responsibilities and rights can include:
- caring for the child;
- maintaining contact with the child;
- acting as the child’s guardian; and
- contributing to the child’s maintenance.
These responsibilities and rights do not necessarily belong to only one person. More than one person may hold parental responsibilities and rights in respect of the same child.
The family should therefore avoid making decisions based only on biological relationships, financial support or previous caregiving. The correct starting point is the child’s existing legal position, considered together with the child’s current circumstances and best interests.
What is the position of the surviving parent?
The surviving parent’s rights depend on the parental responsibilities and rights that the parent already held. In many cases, the surviving parent will continue exercising those existing rights after the other parent’s death.
The surviving parent’s rights should not be assessed in isolation. The family may need to consider:
- existing court orders;
- parenting plans;
- parental responsibilities and rights agreements;
- whether the surviving parent already held guardianship;
- the parent’s previous involvement in the child’s life;
- the child’s existing care arrangements;
- the child’s relationship with other caregivers and family members; and
- any concerns about the child’s safety or welfare.
Where the surviving parent already exercised care and guardianship and there is no dispute, the legal position may be relatively clear. Greater difficulty can arise when the surviving parent has been absent, when another person has provided most of the child’s daily care, or when there are genuine concerns about the surviving parent’s suitability.
An adult should not exclude the surviving parent solely because the deceased parent’s family believes another arrangement would be preferable. If the surviving parent’s rights or suitability are disputed, a court application dealing with the extension, restriction, suspension or termination of parental responsibilities and rights may need to be considered.
If there is disagreement about the surviving parent’s rights or the child’s immediate home, contact Vermeulen Attorneys before taking steps that may disrupt the child’s care or lead to avoidable litigation.
Does a guardian named in a will take over?
A guardian named in a will can be important, but the precise legal effect of the appointment depends on the circumstances.
Section 27 of the Children’s Act provides for a parent who is the sole guardian of a child to appoint a fit and proper person as guardian in the event of that parent’s death. A parent who has sole care may similarly appoint a fit and proper person to be vested with care. The appointment must be contained in the parent’s will.
The appointed person acquires guardianship or care following the parent’s death and the person’s express or implied acceptance of the appointment. This means that the legal effect of a guardian named in a will must be considered with reference to whether the deceased parent was the sole guardian or held sole care.
A will should therefore be read together with the child’s birth certificate, any court orders and the legal position of a surviving parent or other existing guardian. A will cannot simply be used to remove the surviving parent’s existing parental responsibilities and rights.
The presence of a guardian named in a will may still be highly relevant. It records the deceased parent’s choice and may identify a trusted person who is willing and able to care for the child. It does not remove the need to establish whether the statutory requirements are met or whether a court process is required.
Care and guardianship are different
Care and guardianship should not be treated as interchangeable terms.
Care relates broadly to the child’s daily wellbeing, home, upbringing, education, protection and development. A person may provide day-to-day care without holding every other parental responsibility and right.
Contact concerns maintaining a personal relationship and communicating with a child. Contact may include visits, time spent together, telephone calls and appropriate electronic communication.
Guardianship includes significant legal authority. A guardian may need to administer and safeguard the child’s property, represent the child in legal or administrative matters and provide consent for matters identified by law. These can include a passport application, departure from South Africa and certain transactions involving the child’s property.
The distinction between care and guardianship becomes especially important where a relative or long-term caregiver has been attending to the child’s daily needs. Providing care does not, without more, make the caregiver a guardian.
A person who cares for a child without holding parental responsibilities and rights still has duties to safeguard the child’s health, wellbeing and development while the child is in that person’s care. That practical responsibility should not be confused with a full grant of guardianship.
What can a grandparent or another caregiver apply for?
A grandparent, adult sibling, relative, partner of the deceased parent or another person with a genuine interest in the child’s welfare may be able to approach a court for appropriate relief.
Section 23 of the Children’s Act deals with the assignment of contact or care to an interested person by court order. When considering such an application, the court considers factors that include the child’s best interests, the relationship between the applicant and the child, the applicant’s commitment to the child and other relevant circumstances.
Section 24 deals with an application for guardianship. An interested person may apply to the High Court or children’s court for an order granting guardianship. If the child already has a guardian, the applicant must provide reasons why the existing guardian is not suitable.
The relief sought must match the actual legal problem. A person seeking an ongoing relationship with the child may need contact. A person asking for the child to live with them may require care. A person who needs authority to make major legal decisions may require guardianship.
This is why care and guardianship must be considered separately. An application for broader legal authority should not be presented as a contact dispute, and an adult does not need guardianship merely to preserve an appropriate relationship with the child.
Maintaining contact with the deceased parent’s family
The death of a parent can place the child’s relationship with grandparents and extended family under pressure. A surviving parent may wish to reduce contact, while members of the deceased parent’s family may believe that their relationship with the child should continue unchanged.
Grandparents and relatives do not acquire parental responsibilities and rights merely because a parent has died. They may, however, be able to seek contact or care where they have an interest in the child’s care, wellbeing or development.
The court’s enquiry is child-centred. The history and quality of the relationship matter, as do the child’s emotional security, family connections and need for stability after bereavement. Further guidance is available in our article on grandparent contact after a parent dies.
Adults should avoid placing the child in the middle of the disagreement. A bereaved child should not be asked to choose between the surviving parent and the deceased parent’s family.
The child’s best interests and views
The child’s best interests remain the central consideration in decisions about care, contact and guardianship. The answer does not depend solely on an adult’s legal relationship to the child.
Relevant considerations may include:
- the child’s existing relationships and attachments;
- the history and continuity of caregiving;
- the child’s emotional and physical security;
- the likely effect of changing the child’s home or school;
- the child’s relationship with siblings;
- the child’s developmental and educational needs;
- the child’s connection with family, extended family, culture and tradition;
- the proposed caregiver’s ability to meet the child’s needs; and
- the need to minimise further disruption after the parent’s death.
A child who is sufficiently mature to participate has the right to express views in an appropriate manner. Those views must receive due consideration, having regard to the child’s age, maturity and stage of development.
The child’s participation should be managed carefully after bereavement. Hearing the child’s voice is different from making the child responsible for the final decision. Where there is a difficult contact dispute, a child-centred professional process may be needed to establish the child’s views in a contact dispute.
Documents and evidence the family should gather
Early access to the correct documents can prevent decisions based on incorrect assumptions. The family should, where relevant, gather:
- the child’s birth certificate;
- the deceased parent’s will;
- existing court orders;
- parenting plans;
- any parental responsibilities and rights agreement;
- guardianship and maintenance orders;
- previous Family Advocate recommendations;
- school and medical records; and
- documents from previous proceedings involving the child.
A person seeking care or guardianship should also preserve objective evidence of the caregiving history. This may include school involvement, medical involvement, communications, financial contributions, living arrangements and support provided following the parent’s death.
The proposed caregiver should be able to explain the practical plan for the child. The plan may need to address accommodation, schooling, healthcare, sibling relationships, family contact and the child’s emotional support.
When urgent legal advice may be necessary
Not every disagreement after a parent’s death requires urgent litigation. Prompt legal advice may nevertheless be needed where delay could expose the child to harm or create serious practical consequences.
Potentially urgent circumstances include:
- an adult attempting to remove the child without proper authority;
- competing adults trying to take physical care of the child;
- an immediate dispute about where the child will live;
- a passport application or proposed international travel;
- a dispute preventing necessary medical decisions;
- school enrolment being blocked;
- immediate safety or welfare concerns; or
- a need to protect property or assets belonging to the child.
Where immediate safety, removal, medical treatment or international travel is involved, speak to an attorney before taking unilateral steps. The correct remedy and court process will depend on the rights already held, the evidence and the urgency of the situation.
Practical next steps after a parent dies
Start by identifying every person who held parental responsibilities and rights before the death. Obtain the will, birth certificate, court orders and agreements. Establish where the child is living, who has been providing care and whether any immediate decision requires a guardian’s consent.
Where the adults can cooperate safely, a child-centred agreement may reduce disruption. Depending on the issue, assistance from the Family Advocate, a social worker or another suitably qualified professional may be appropriate.
Where agreement cannot resolve the legal issue, the available court process depends on whether the person seeks care, contact, guardianship or a change to another person’s parental responsibilities and rights.
Vermeulen Attorneys can assess the existing legal position, the effect of a guardian named in a will and the relief that may be appropriate. Contact Vermeulen Attorneys to arrange a focused children’s-law consultation.
Frequently Asked Questions
Who cares for a child if one parent dies?
The answer depends on who already holds parental responsibilities and rights, any existing court orders or agreements, and the child’s circumstances. A surviving parent may continue exercising existing rights, but the legal position should be established before another family member assumes authority.
Does child guardianship after a parent dies pass to the surviving parent?
The surviving parent’s rights depend on the rights that parent already held and any relevant court orders or legal arrangements. The death of the other parent does not remove the need to establish the surviving parent’s existing legal position.
Does a guardian named in a will become the child’s guardian?
Section 27 permits a parent who is the sole guardian to appoint a fit and proper person as guardian in a will. A parent with sole care may make a corresponding care appointment. The effect of the appointment must therefore be assessed against the deceased parent’s legal status and the rights of any surviving parent or guardian.
Can grandparents apply for contact after a parent dies?
Yes. A grandparent with an interest in the child’s care, wellbeing or development may apply for contact or care under section 23. Grandparent contact after a parent dies is determined according to the child’s best interests and the relevant relationships and circumstances.
Can a long-term caregiver apply for care and guardianship?
A long-term caregiver may be able to apply for care under section 23 or guardianship under section 24. Care and guardianship involve different responsibilities and rights, so the application must seek relief that matches the actual legal issue.
Will the child be asked which family member they want to live with?
The child’s views may be obtained and considered in a manner suited to the child’s age, maturity and development. The child should not be pressured to choose between adults. The purpose is to hear the child’s views while keeping responsibility for the decision with the adults and, where necessary, the court.
When should the family obtain urgent legal advice?
Prompt advice may be required if the child is at immediate risk, is being removed without authority, requires a disputed medical decision, or is involved in a passport or international-travel dispute. Urgency will depend on the facts and the potential effect of delay on the child.
If a parent has died and the family is uncertain about child guardianship, contact, care or a testamentary appointment, contact Vermeulen Attorneys for advice based on the child’s legal position and circumstances.
