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    PureFluff's Avatar
    PureFluff Posts: 2, Reputation: 1
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    #1

    Aug 3, 2009, 12:07 AM
    Getting Custody After Death?
    My mom has cancer. In her frenzy of things to concentrate on 'just in case', this has come up.

    My mom wants me to take care of my three half siblings. Bradly (10), Tristan (11), and Rachel (3).

    I am a 19, almost 20, year old woman living in Oregon. I have a job and go to college. I currently live with roommates but am planning to move out with friends. If I wanted to go to my hometown, I could get a full time job (during what would be during public school hours), free rent, and a sitter. I've been saying since I was 11 I would do anything if my siblings needed me, and that includes dropping out of school.

    Bradly and Tristan come from a different father than Rachel does. I think getting custody over him will be easy since he hasn't had a job for like... six years? He also has no interest in them and would probably gladly give them to me. So those two are covered, however I WOULD like something more official.

    Rachel, on the other hand, has a father who my mom is currently with. She doesn't want to tell this man, Jeff, she has cancer, and does not want any of my siblings ending up with him. He has a job but works all night, sleeps all day, and does not even have visiting rights to his other two kids due to losing them to neglect.

    My mom wants papers saying I get custody of all children if she dies due to her illness (or any reason) but I'm having a hell of a time finding out how to manage this. Any help is appreciated.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #2

    Aug 3, 2009, 05:26 AM

    I'm sorry, but guardianship of children cannot be legally transferred via a will. If either father contested it, they would, in all likelihood, win custody.

    That doesn't mean your mom shouldn't put that in her will. If she makes you executor of her estate, you can use the will to prove your legal guardianship. But if either father goes to court over it, then they could overturn it.

    I would suggest your mom consult an attorney to determine what's the best course of action to take.
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,301, Reputation: 7692
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    #3

    Aug 3, 2009, 05:44 AM

    Yes at her death, unless the child's father had his rights taken away, the father would have the strongest rights and case for custody.
    s_cianci's Avatar
    s_cianci Posts: 5,472, Reputation: 760
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    #4

    Aug 3, 2009, 05:52 AM
    Has your mother made a will? Has she named you guardian of your half-siblings? If not, she should, right away. Actually, she should do that even if her illness proves not to be terminal (and I certainly hope that's the case.) Now understand that the respective fathers of your half-siblings do have the right to contest your guardianship. That's not to say that they'll automatically prevail if they do as each circumstance is different. But be prepared for the possibility.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #5

    Aug 3, 2009, 06:27 AM
    Quote Originally Posted by s_cianci View Post
    Has your mother made a will? Has she named you guardian of your half-siblings? If not, she should, right away. Actually, she should do that even if her illness proves not to be terminal (and I certainly hope that's the case.) Now understand that the respective fathers of your half-siblings do have the right to contest your guardianship. That's not to say that they'll automatically prevail if they do as each circumstance is different. But be prepared for the possibility.
    Do you have any support for that? It is my understanding that any clause in a will that conveys custody or guardianship of minor children is not legal and would be voided if contested.
    PureFluff's Avatar
    PureFluff Posts: 2, Reputation: 1
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    #6

    Aug 3, 2009, 09:38 AM
    I read somewhere, briefly, that a will is not final documentation as far as custody, but if I am named to be a guardian in case of death, that a letter stating why I should be in charge of the children as opposed to the fathers (though will not set anything in stone) will help? Naming off reasons in the past my mom does not trust the fathers with the children in a custody situation. Will this help?

    Also, does it help at all that she was never married to either biological father?
    stinawords's Avatar
    stinawords Posts: 2,071, Reputation: 150
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    #7

    Aug 3, 2009, 10:28 PM

    No, it dosen't really help your case that she wasn't married to them because they are still the fathers plain and simple. As much as I hate to say it if they do contest you having custody then they will most likely win because they will have "first dibs". Of course that doesn't mean they have to... if they don't want to take custody they can let you but they do have their rights.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #8

    Aug 4, 2009, 04:57 AM

    The fact that she was not married to the fathers has no bearing. Nor would a letter from the deceased have much influence on a court. You have to deal with the law. IF the fathers contest the will, then you have to prove, with real evidence, why it would be in the best interests of the children to be put into your custody.

    That's why your mom needs to consult an attorney to prepare for the eventuality of the fathers contesting the will.
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