QLD Custody of Children After Mother's Death

[sarahmaree]

I have a toddler with my ex, and am having another baby via sperm donor. We live with my parents and I'm about to do my will so that they have control of my life insurance and also preference of guardianship for my kids.

My question is, being that it's a sperm donor that's the second child's father, and I'm having this baby go to my parents in the event that I die, I don't want my children separated but this child is NOT going to my ex (domestic violence issues). Is there anyway to stop the eldest from going to her father and therefore separating her from her sibling and from her grandparents who she's lived with her whole life to go to a man who she only spends 3hr a fortnight. In the even that I die (custody of children). I think there'll be enough upheaval in their lives without taking her from her sibling and home.

 

[AllForHer]

You can appoint a testamentary guardian in your will to have parental responsibility for the kids, however a testamentary guardian's responsibility coincides with the parental responsibility of the remaining, living parent.

If you do appoint your parents testamentary guardianship of both your children, the father of your eldest is within his right to pursue sole parental responsibility and orders enabling the child to live with him. There is nothing you can do to prevent this from happening because it would infringe on your child's rights, which are, under s60B of the Family Law Act 1975 (Cth):

• ...the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
• ...a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

If the father were to pursue the matter in court, the court would make orders in favour of the child's best interests, which is outlined under s60CC of the Family Law Act. Likewise, your parents would need to prove that it's in the child's best interests to live with them.

Hope this has provided some clarity about the situation.

 

[sarahmaree]

So are you saying that the younger child, though completely unrelated to him, could be sent to live with him? Couldn't it be seen that complete up-heavel and removal from remaining family that the children live with would be detrimental to both children? Especially since ex would be a complete stranger to the youngest (I literally have zero contact with him, eldest child's visitation is done through his parents due to domestic violence). Do they separate siblings?

 

[AllForHer]

Am I saying the younger, non-biological child could be sent to live with your eldest's father? Not really, though I also would not say it's impossible.

However, does the court separate siblings? Yes, the court has and will separate siblings, if it deems it in each child's best interests to do so.

In context, the father of your eldest would likely only submit an initiating application for parental responsibility of his own child, not your youngest, though the court would still consider both in any orders it makes. For example, the court may make orders that the child live with the father and spend substantial and significant time with her grandparents and her half-sibling. Or it may order that both children live with your grandparents. It's impossible to predict the outcome of parenting matters because they are always vastly different and very unique.

However, keep things in perspective. We are only talking about a hypothetical, aren't we? And on top of that, very few parenting cases even make it to court.