Death is a topic not many wish to think or talk about, especially when it comes to the passing of a parent or parents of minor children. The sad reality is that parents do at some point pass away, with their children then having to be cared for by someone else. 

Usually, although always extremely sad, the care of the children is not a problem as the surviving parent will continue with their care. The question however arises, what happens when the parents are no longer married or in a relationship and the primary care giver passes away and the relationship between the children and the surviving parent is not good, or the surviving parent is not in a position to care for the children?

What many parents do, is to include a clause in their last will and testament awarding guardianship and care to someone other than the other surviving biological parent. But what weight does such a clause carry? 

The short answer is a lot, but without a court order confirming it, no weight at all.  

South African law determines that the biological parents of a child are almost always automatically the guardians of the child and have the rights to care of the child. What follows is that when one parent passes away and the parents are no longer together when it happens, the other parent in most cases will be the first choice as the primary care taker of the child. 

However, this is not always in the best interest of the child and any person who has a material interest in the wellbeing of the child, may apply to court to obtain rights which can include guardianship and primary care. 

When the deceased, in their will, nominates a person as the guardian or care taker at their passing, that person will not automatically acquire the rights envisaged by the deceased and must approach a court to vest these rights, should it be in the child’s best interest. 

The wishes of the parent who passed and was the primary care taker of the child, will obviously carry a lot of weight when the decision of where the child will live and who will be the child’s guardian is concerned, but it is not the determining factor. The best interest of the child is.

The best interest of the child will include factors such as who will be best suited to cater to the child’s emotional, spiritual and educational needs, with whom does the child feel safe and secure, what is the relationship between the child and the person applying for guardianship or care and how will the placement affect the other parents’ rights. 

It is advisable that parents include the “guardianship clause” in a will, as this will be helpful to any party who has the interest of a child at heart, in the event of that person not being the child’s biological parent and at the passing of the primary care taker.

Any person who is faced with the unfortunate situation of having to deal with the care of child at a parent's passing, is encouraged to consult a family law attorney to assist them in the application to court, so as to ensure that the child’s best interest is served.