Ask Me Help Desk - Child Custody, Name Change, Abandonment/Absentee Parent, Will

My son is 5 1/2 and I, his mother, have had him since he was 6 months old when we left his father (my boyfriend) in Oct 2003. I receive no child support and have never filed any legal papers with regard to my son, nor has his father (to my knowledge). His father is listed on my son's birth certificate (unfortunately).

I have various legal concerns with regard to my son's welfare as follows:

1. I would like to have his last name legally changed to mine and would like to do so without involving the father. Is this possible considering the fact that he is completely absent from my son's life, physically and financially? Please advise.

The next three questions pertain to my estate/inheritance and custody of my son as it would relate if I pass away before my son is 18 yrs of age.

2. I would like to insure that my ex does not have the ability/legal right to uproot my son from all that he knows... schools, family, friends, etc, moving him over 8 hours distance from his current home. What type of preparations can I make to insure this? Would it be a will, or some other legal avenue? If it is a will, what verbiage needs to be included?

3. I would also like to insure that my estate and inheritances are protected from my ex who would gain control if he were to secure custody of my son. On the flip side, would it be possible for him to gain ANY control of my estate assuming he gained NO physical custody? How do I protect my estate? What other issues should I be aware of?

4. Ultimately, I would like to know what havoc he can wreak (and he IS a 'havoc wreaker') in the event of my death with regard to my son and his welfare, my estate, etc. Is there anything else that I should be attending to in this regard? :eek:

Thank you!

1. can't, you have to involve the father

2. sorry , no at this point and time the father has as much legal custody as you do to the child, he he came and got the child tomorrow, what is to stop him / he is on the birth certificate, and you have no custody order

He has no legal right to any of your estate, but he would get custody at this point of the child, since at this point he ahs full legal custody equal to yours.

And you complain about not getting any support but never filed for any.

Chuck is correct. As long as he is the legal father (and he is), you would have to get his permission for any name change. If you were to die, he would gain custody if he asks for it.

To protect your estate, make sure you have an executor and trustee to manage the estate for your son until he becomes of age.

You could try to terminate the father's rights, but that's a long shot.

The two above answers are both correct. A child is not a willable item, he is a person, people are not willable. Therefore, as said in the event of your death his father would gain custody, if you know of someone else that would want custody then you can always let the father know that because he can also choose not to take custody and allow whatever other adult in the child's life to get custody of him. Your ex has no right to your estate so really all you need to do for that is make sure you have a good executor. And to answer your first question last, it isn't possible to change his name with out including the father.

Thanks for your replies,

I've been told that no self respecting court would take my son and deliver him to his legal father since he has been absent for over 5 years. Additionally, it would be beyond outrage for my son to be ripped away and severed from the only family and friends he's ever known (his entire life) and dropped into the life of a mad man, who would make it his goal to sever all ties with my son's family/friends.

This is why I mentioned in my original post that I might be able to insert an additional statement (ie. Special circumstances) in my will as this was mentioned to me some time ago. In posting my question I was looking for legal confirmation of this possibility.

At this point, I would like to get any additional information on termination of parental rights as I believe my ex would qualify. Does anybody have more information on this process?

With regard to my estate, I am presuming that if he had legal custody of my son, that since my son is sole beneficiary, he would then have access to everything that my son is beneficiary of. I think the only way around this is to create a revocable trust, but I am not sure. Any comments?

Thanks!

Quote:

Originally Posted by tahoekc22

Thanks for your replies,

I've been told that no self respecting court would take my son and deliver him to his legal father since he has been absent for over 5 years. Additionally, it would be beyond outrage for my son to be ripped away and severed from the only family and friends he's ever known (his entire life) and dropped into the life of a mad man, who would make it his goal to sever all ties with my son's family/friends.

What you have been told is only partially correct. Courts are charged with making their rulings with the best interests of the child has paramount. But that doesn't mean they can defy the law to do so.

Unless you can prove the father is really a mad man and unfit as a father, as the legal father, his claim for custody would have to be honored as a matter of law.

Quote:

Originally Posted by tahoekc22

This is why I mentioned in my original post that I might be able to insert an additional statement (ie. special circumstances) in my will as this was mentioned to me some time ago. In posting my question I was looking for legal confirmation of this possibility.

You can insert any clause in your will that you want. But you can't violate the law to do so. Any clause in a will that confers custody or guardianship to someone other than the legal parent would not have the force of law. If there is a surviving legal parent that parent can challenge that portion of the will and would probably win.

Quote:

Originally Posted by tahoekc22

At this point, I would like to get any additional information on termination of parental rights as I believe my ex would qualify. Does anybody have more information on this process?

Frankly, I doubt if you could get this done. Courts are very reluctant to grant a TPR. Generally they would only do so to clear the way for adoption or if the parent represents a danger to the child (and that is very hard to prove). But if you want to try for an involuntary TPR, you need to consult an attorney to prepare the petition. The attorney will advise you of the process and your chances of success. If you try to do this without an attorney your chances of success are slim and none, In my opinion.

Quote:

Originally Posted by tahoekc22

With regard to my estate, I am presuming that if he had legal custody of my son, that since my son is sole beneficiary, he would then have access to everything that my son is beneficiary of. I think the only way around this is to create a revocable trust, but I am not sure. Any comments?

Thanks!

Your presumption is not accurate. If you appoint an executor/trustee for your estate in your will, then that person will control the purse strings. The father would have to deal with that person to get any funds from the estate.