In many circumstances after parents separate, the child will live primarily with one parent and spend time with the other parent on an agreed or court ordered basis. In other cases, and mainly in the case of slightly older children, the child may spend equal time with both parents on a weekly or other basis.

These arrangements generally stay in place until the child is 18 years old, or earlier if the child so requests or the parents come to a new arrangement due to a change in their circumstances.

But when one parent suddenly passes away – what happens to those arrangements?

In a recent case in the Family Court of Australia, a stepfather as opposed to the child's biological father was given the primary care of a child on an interim basis, after the child's mother passed away.1

In the circumstances of that case, the child had been living with his mother and stepfather from the age of 1 to age 7, when the mother tragically died in a motor vehicle accident. The child was very close with his stepfather and had a strong relationship with him. The child also had a younger brother (to whom the stepfather was his biological father) that he was closely bonded to.

The child had been seeing his biological father on alternate weekends and for a portion of the school holidays. Unfortunately, after the passing of the child's mother, the father declined to return the child to the stepfather, following one of those weekend visits.

When determining whether the child should remain with his biological father or be returned to the care of his stepfather, the court considered factors such as: –

  • The previous arrangements for the child, in that he had lived with the stepfather during each week for 6 out of the 7 years of his life;
  • The child's relationship with his stepfather and younger brother;
  • The trauma that the child had already been through in losing one of his significant parents, and the need to avoid further trauma by removing him from his stepfather and brother;
  • That the child attended school in the same area as the stepfather did, at the same school as his brother and friends;
  • The stepfather's attitude and willingness to ensure the child would still see and interact with his biological father, despite being in his primary care;
  • The meaningful relationship between the child and his father;
  • Ultimately, what was in the best interests of the child.

In that case, the court held that it was important for the child to remain living with his stepfather and brother, and to spend time with his father on alternate weekends. However, those orders were only made on an interim basis and may be subject to change at a final hearing.

When circumstances change and the arrangements made for your children need to be altered, our helpful family lawyers can provide you with expert guidance to help get you back on track with your family.


1Cottey & Backe (No.2) [2020] FamCAFC 206

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.