Can a step-parent be a legal guardian for their step-child in the event of the biological parent's death? | Lawhive - Solicitors & Lawyers Online
Can a step-parent be a legal guardian for their step-child in the event of the biological parent's death?
Can anyone help me understand more about legal guardians for children in the event of a parents death? Especially when it comes to step-parents maintaining care of gaining parental responsibility in the event of their spouses death? Basically I have a son from a previous relationship. His father cannot have unsupervised contact with him and is not a suitable parent, he simply would not have the capacity to care for him in the event of my death. We have a child arrangements order which stipulates that our son lives with me. I'm now married and have two other children, who are very close in age to their half-brother. My first son has always known my husband to be his other "daddy" and we live together as a family. As I understand it, if I were to die suddenly, my eldest would automatically be placed in his bio father's care despite our family circumstances. Of course I want to avoid that ever happening, but I'm unclear as to whether I can appoint my husband as his legal guardian upon my death, granting him parental responsibility for him, or if we would need to go through the process of trying to get him parental rights through the courts now? I know it can be a long and complicated process so I'd like to avoid it if there is a simpler way! Thank you!


16th March 2022

Top Answer
Solicitor ( not in practice). You can appoint your husband as legal guardian but if the bio father has PR, the strict legal position is that the bio father will be the only remaining person with PR in the event that you die before him. Therefore the will or other document appointing your husband as guardian wouldn't come into effect on your death. That doesn't mean that your son would be automatically placed in his care if you were to die and if he is not suitable to have even unsupervised contact, it is highly unlikely that he would be considered the person best able to care for your son. What would happen would depend on whether or not matters could be agreed and if not, the court would have to be asked to make a decision based on what is best for your son. If you have real worries about this potential situation, it may be best to try to get PR for your husband now. Usually an application for step parent PR is made/justified on the basis that it is best for your child that the step parent be in a position to make emergency decisions for your child eg consenting to emergency medical treatment. The process can be long but isn't always so, especially when the bio parent isn't playing a major part in the child's life

Carol Lewis

17th March 2022

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