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familylawexpert, Family Solicitor
Category: Family Law
Satisfied Customers: 311
Experience:  Substantial experience (14yrs +) in divorce, financial cases, cohabitation, pre-nuptial agreements and civil partnerships.
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Hello, The situation I am a non resident father to 2

Customer Question


The situation

I am a non resident father to 2 children born before 2003 so I do not have automatic parental responsibility as I was not married to the children's mother but I am named on the birth certificates. The children have lived with their mother and her partner (unmarried) for the last 7 years and I have had the children stay with me alternative weekends. Unfortunately their mother has died and I would like to know whether I automatically will receive custody/parental responsibility for the children. My concern is that the partner will try and keep my children or apply for guardianship. The children are happy and they get on well with him and would probably say this at the moment but they have been influenced by the circumstances over the past 7 years. Where do I stand legally, and will I need to go to court where a judge will decide whether or not I can have custody of my own children and is there the possibility that custody could be awarded to him? (there is no risk to the children either way)

thank you
Submitted: 3 years ago.
Category: Family Law
Expert:  familylawexpert replied 3 years ago.

My name is Mac. I can help you with your question.

As the surviving person with parental responsibility, the default position is that you will assume primary care of the children. It would be open to the mother's partner to apply to the court, but I would not expect him to succeed over you (absent any unusual reasons why not).

You should raise this immediately, as it will help to eliminate uncertainty, as well as establish the new status quo, if you assume care of the children straight away.

I hope that is helpful. If you would like me to clarify anything, please ask. If not, I would be grateful if you could rate my answer.

Customer: replied 3 years ago.

Hi Mac,

As I explained in my original question I do not currently have parental responsibility due to the law not changing until 2003. Are you implying that as the surviving biological parent that I automatically receive parental responsibility or is this something I have to apply for? Also where you say I should raise this immediately, who do I raise it to and how?


Expert:  familylawexpert replied 3 years ago.
My apologies Bob. I misread your original email and thought your children were born after 2003. Less haste, more speed.

Do you know if the mother had a will, and whether she named a guardian in that will?

Customer: replied 3 years ago.

Hi Mac,


As far as I am aware she does not have a will nor has formally named any guardians



Expert:  familylawexpert replied 3 years ago.
If there is no will then she has not passed parental responsibility onto anyone else.

There are two aspects to pursue. In practical terms, you should be seeking to reach an agreement with anyone with an interest that you will be the children's primary carer.

Aside from that attempt to reach agreement, and even if you reach agreement, you should make an application to the Court for an order that the children live with you and that you will have parental responsibility. You will need this anyway, even if agreement is reached.