If a Mother Dies, Who Gets Custody of a Child in the UK?


Death is never an easy thing to discuss from a legal aspect and even more so difficult when it involves a family member who has a child. It is not an automatic process that if a child lives with their mother, and their mother dies, the father will obtain custody of their child and vice versa, that is the right to decide on day-to-day matters touching and concerning the child, and also to decide on matters as regard’s the child’s future and education.

If a Mother Dies Who Gets Custody in the UK?

For example, if a mother of a child dies and there is a child arrangement order in place whereby the child spends time with the father but resides with the mother who cares for the child and decides on the child’s future, the biological father of the child can obtain an order for the child to live with him and for him to look after the child’s welfare and make future arrangements for the child.  However, there is no legal presumption that the surviving parent will always get child custody after the death of a parent. This is due to many reasons. The term custody here is used to connote in simply language (not by way of any legal term) the person with whom the child resides and who has authority to deal with the child’s day to day issues, welfare and education. 

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There may be cases where both parents have had “joint custody“, and indeed this is normal when both have parental responsibility. Whilst a mother always has parental responsivity, a father can do if married to the mother at the time of birth, and his name is on the birth certificate of the child, and if not married if the name of the father is on the birth certificate, or the father can obtain a court order to grant him parental responsibility, or the father and mother may have entered into a parental responsibility agreement. In these cases, and where there has been a joint custody order, the father can apply to the court to have the child live with him in the event of the mother’s death if the child has been living with the mother before her death.

Indeed, the court order giving the mother the right to the child to live with her may have been envisaged during, say, the mother’s illness and may well have made a provision that in the event of death of the mother then the child will live with the father who will have sole custody. 

There may be other people who can join in to help the father if the father is working and unable to look after the child fully. For example, grandparents, uncles, or aunts or other relatives may apply, but they will need the permission of the courts to make such an application. Indeed, the chances of a successful application by them may be greater where the father had not been given any rights to see the child or those rights were limited either to contact with the father to take place at the father’s home on certain days or in a contact centre. Read more about what rights grandparents have in relation to their grandchildren?


At the end of the day, the court, in making an order with whom the child should live, will consider numerous factors to ascertain what is in the child’s best interest. That, at the end of the day, is the most important factor to consider. As a public body, the court will also have to consider any human rights issues as regards the child’s private and/or family life in deciding about the child’s future in the event of their mother’s demise. A will written by the mother at a stage of her life when her marriage had broken down appointing a third party to be the guardian of their child may also be considered by the court.   

How can Gulbenkian Andonian Solicitors help?

Discuss your case with our professional Children and Family Lawyers and learn more about how child arrangements work in the UK and how to apply for one. We will inform you of all possible options and solutions that are of relevance to your specific situation. 

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At Gulbenkian Andonian, we pride ourselves on “Excellence, Experience and Efficiency”. With over 35 years of experience on your side, our team of London based lawyers and solicitors have a wealth of experience advising individuals, families and businesses of all sizes to find clarity on UK law.

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