[macksmom]

So my daughters biological father said something the other day that got me to thinking. He said if anything were to happen to me he would step in and take my daughter.

Some background...

My daughter is 5. Her bio father stopped seeing her when she was about 15 months old and had no contact until about 6 months ago. He has started seeing her again for a few hours at a time about once every 3 weeks... I have to be there because she didn't really know him and we wanted to ease her back into visitation.

I am married now and if you add up all the time/hours/mins that my daughters bio father has seen or been with my daughter and did the same with my husband... my husbands involvement FAR surpasses her bio fathers. She considers my husband her dad too. She always says she has "two daddys".

Her bio father has 2 other children by 2 other women and has no contact with either of them. He has had multiple DUI's and has been in jail for assault. He is 28 and lives in a one bedroom apartment with another male friend of his because he can't afford his own place. His license is suspended and he has no car.

My question is... if I were to write a will... could I specify that if anything were to happen to me that my daughter remain with my husband? I mean visitation and everything would stay the same with the bio father... but I feel she will be better off with my husband. Don't get me wrong, my daughters bio father and I have a great relationship, and he is a great dad when he has the time. I know this is kind of "out there"... but anything can happen. It would tear her apart if she was taken from my husband, because I know her bio father would not let him see her.

Any advice?

[GV70]

My question is.....if I were to write a will....could I specify that if anything were to happen to me

:) You should think about it after 60 years... not now:)

My question is.....if I were to write a will....could I specify that if anything were to happen to methat my daughter remain with my husband?
Any advice?

No,the will does not matter.The parents usually prevail over non-parents in custody disputes.He is her legal father and that means he has all rights and duties.It is not impossible the custody to be awarded to the third party but it is very very hard to be done.The court has to be convinced of eventual harms and damages...

[ScottGem]

Yes you can specify guardianship in your will. Its possible that it might be overturned by a court, but unlikely.

[GV70]

Scott,let me respectfully disagree with you.


Here are my arguments:
A legal guardian is a person who has the legal authority (and the corresponding duty) to care for another person due to childhood and etc.The guardian has to be appointed by the Court,not by the will.Almost 50 states have provisions that the parents are children's guardians.The parents can designate who will be the child's guardian in event of their death.But here is one little detail... both parents have to be dead.
In other way if one of parents is dead the other will assume all rights and duties/i.e. he/she is entitled to full custody/.The will CANNOT repeal the Law.That is a custody question.The parents have custody unless the Court says other.The will cannot impose custody rights when they are imposed by the law.

[macksmom]

That is a custody question.The parents have custody unless the Court says other.The will cannot impose custody rights when they are imposed by the law.

As far as custody goes... I have full/sole custody... does that change anything?

Again, its not that I am/would try to prevent my daughters father from caring for her. As I said, he and I have a great relationship. It's just his lifestyle isn't suitable for a child. When my daughter and I travel to him for visitation I have offered to drop her at his house and me leave for a few hours so they can spend some time together... he always says no, that "my house isn't set up for children to be there". He can't support himself, let alone a child on his own. I am interested in the well being of my child, and I honestly think if I were to die tomorrow her life would be better if she resided with my husband. If I honestly thought she would be better living with her father I wouldn't be asking this question.

[ScottGem]

GV and I have been discussing this privately. I believe he is correct in his general interpretation of the law. But I'm taking a more narrow view here of just your specific situation. I thought that you had sole and full legal custody. My impression was that you were allowing visitation on your own, not court ordered.

In my opinion, the bio-father would have to contest the will to gain custody. I think, if that happened, the courts would apply the best interests of the child standard and uphold your express wishes. I could be wrong though, we never know how a court, especially family court, will rule.

[macksmom]

Yes I have full and sole legal custody of my daughter. I filed for child support when she was 3 days old. Since that time we have been in and out of court for that. He moves constantly and doesn't inform the courts, he switches jobs and doesn't inform the courts... the last time they couldn't match his SS# to any job, and they couldn't take him to court because they didn't have a valid home address. I happened to find out where he worked but accident, sat outside his work and followed him home and got a home address for him (this was about a year ago and he wasn't seeing my daughter). I called the courts and informed them of all the new info I found. They served him with papers at work holding him in contempt of court... he didn't show for the hearing, so currently there is a warrant for his arrest in that matter.

One of the times we were in court for child support we did establish a visitation, court ordered. At that time he had not seen her in almost a year so the judge ruled a "graduated" visitation schedule (ex. He could see her a few hours a week but I had to be there, after a month he could take her for a few hours etc) the judge ruled this because he had not seen my daugther in so long they wanted to ease into things. Then her dad stopped seeing her. The last time he saw her was June 2003.

He got in touch with me about 3-4 months ago and wanted to see her again. So I have allowed it because I don't want to prevent a father-daughter relationship. We have been trying to ease things in, like before. But we are not following the visitation order because things have changed since then... like he doesn't have a car or license to take her, and doesn't have a place to go when he has her.

So after my long-winded reply haha... yes... I have full/sole custody of her, not joint, not shared... and yes there is a visitation order... but that ordered has been "broken" or not followed how it was supposed to be... and now we're back a square one.

Like I said, her bio father comes and goes so easily in and out of her life. My husband has been the only constant father figure to her. She would be thrown into a whole new family (she doesn't know any of his family, his mom or dad, nothing). I just wanted to see how I could protect her should something happen to me.

[GV70]

Ok-the full custody of deceased parent does not count... Here is an example from PCS- Domestic relations-Title 23 -Children and minors:
§ 5311. When parent deceased.
If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

[GV70]

Finally-the court may grant some rights to grandparents /or third parties/ if it would not interfere with the parent-child relationship.

[macksmom]

Well isn't that saying that in the case of my death that my mother (as I have no grandparents) could have partial custody if it's in the best interest of the child?

So wouldn't it reason that the same would apply to my husband, my daughters step-father? If the courts find it in the best interest of the child?

[GV70]

Sorry-the grand parents of the child-not yours

[ScottGem]

The grandparents of the child would be Macksmom's parents.

The bottom line here is this is probably not a situation specifically defined by law. So I think a judge would have to rule. And I think they would rule using the best interests doctrine. In my opinion that would be leaving the child with the step father.

[GV70]

So wouldn't it reason that the same would apply to my husband, my daughters step-father? If the courts find it in the best interest of the child?

Yes, it is possible but her step-father has to prove that he was a primary caretaker and he has a very strong bond with her.Here is the difference between Scott's and my points of view.I think the law recommends for him to have a status as "De facto parent".But if the legal father is still alive,and he has rights/ I mean his rights are not terminated/... and these rights notwithstanding that he has never had sole legal custody will win vs. step-father's claims... In many cases the court awards limited visitation/ if award!! / to the step-parents after that.

[macksmom]

The bottom line here is this is probably not a situation specifically defined by law. So I think a judge would have to rule. And I think they would rule using the best interests doctrine. IMHO that would be leaving the child with the step father.

That is what I would hope... I mean that is what they did when it concerned visitation... they didn't just jump right in to him having every other weekend... they took it step by step to make it easier for my daughter.

Again, I know this is an "out there" question... the possibility of something happening to me tomorrow is slim, but you never know, and I just want to make sure my daughter is in the best possible care.

Thanks!

[macksmom]

Yes, it is possible but her step-father has to prove that he was a primary caretaker and he has a very strong bond with her.Here is the difference between Scott's and my points of view.I think the law recomends for him to have a status as "De facto parent".But if the legal father is still alive,and he has rights/ I mean his rights are not terminated/ ...and these rights notwithstanding that he has never had sole legal custody will win vs. step-father's claims...In many cases the court awards limited visitation/ if award!!!/ to the step-parents after that.

Thanks, I understand this situation may never arise but I wanted to cover my bases to ensure the best possible situation for my daughter should something indeed happen to me.

Proving my husband is the primary caretaker won't be hard because he has enabled me to be a stay-at-home mom due to some early medical issues with my daughter. And the fact that me receiving child support is few and far between, not to mention the amount of arreages and his tax evasion because I get his tax returns until he is caught up with support, he hasn't filed taxes in 3 years. So non of that will be hard to prove.

I would even be happy with my husband at least getting joint custody... that way I know someone is in her corner... and is looking out for her best interest.

[GV70]

CHAPTER 56. STANDBY GUARDIANSHIP ACT
§ 5611. Designation.
(a) General rule.--A custodial parent or legal guardian may designate a standby guardian by means of a written designation unless the minor has another parent or adoptive parent:

Whose parental rights have not been terminated or relinquished;
Whose whereabouts are known; and
Who is willing and able to make and carry out the day-to-day child-care decisions concerning the minor.

(b) Exception where other parent consents.--Notwithstanding subsection (a), a parent or legal guardian may designate a standby guardian with the consent of the other parent.


My argument that the will cannot designate a guardian without agreement of the other parent

[s_cianci]

You can stipulate whatever you want in a will. But a will can be contested and the court would give a lot of weight to a biological parent. If the bio dad vigorously contested it, your husband would be in for an uphill battle.

[macksmom]

Thanks for all the answers :) I was clueless and wasn't sure should I set the groundwork or what... thanks again :)

[GV70]

You can stipulate whatever you want in a will. But a will can be contested and the court would give a lot of weight to a biological parent. If the bio dad vigorously contested it, your husband would be in for an uphill battle.

Almost... these kinds of wills do not have any legal values:(

[froggy7]

What if she set it up in the will, and the bio dad signed some sort of legal agreement saying that he agreed with the provisions as set up? Surely, in that case, the court wouldn't want to mess with an arrangement that everyone is happy with.