[cllockhart]

I am wondering how the legal system works with the custody thing in wills. I am single, but engaged right now (don't think it will work out though). My fiancé and I have a son together. I pay for almost everything. I own our house, and pay for all food and childcare for our son. He pays half the house payment and bills every once in awhile. I certainly could not afford to do all of what I do without my parents help at times. I am still in school and don't have a full time job, so they help us out. My fiance's parents live on the other side of the US. They do not pitch in a dime to help myself, their son, or their grandson.

That was some background, now for my question. I am about to set up my last will and testament. I am wanting to put in the will that if I die my son will go to my parents. I want my fiancé to be able to visit him but with his work schedule he is only home about 36 hours a week and that is not enough time to devote to being a single parent. My biggest concern is that if I should die that he would decide to move to the other side of the country with his parents. That is the LAST THING I WANT! They have shown no love or care for my son. My parents constantly show him love. On days when my mom can't see him she will call to talk to him at least 3 times a day (my son is only 1 but loves talking on the phone). My fiance's parents have never called to talk to him. They have only seen him 2 times since he was born and did not want to hold and play with him. I do not want my son in a non loving environment if I die. And even when my fiancé is home alone with our son, he makes him sleep most of the day and refuses to play with him.

How can I make sure my child will not end up with my fiance's parents??

p.s. It would also be devastating to my parents since I am their only child and this is their only grandchild. If I die they would not just be losing me but also their grandson.

[joypulv]

You can't put where a minor child goes into your will. Depending on what state you live in, whether your fiancé is on the birth certificate and/or can prove through DNA that he is the father, or whether you marry, then he has certain rights.

As far as him helping pay for the mortgage, you might want to keep records of all your finances and what is shared, whether you marry him or not.

I'm not sure why any parent should be put down for not 'chipping in a dime' for their adult children. You are fortunate, plus you are in school. I'm also not sure why you would dread having him take the child (which you call 'my child' but of course he's your shared child) to his parents. Just because they are cross country and don't call doesn't make them horrible. Time to think about calling off your engagement, maybe? Not that it will change the fact that he is and always will be the child's father, and have rights.

[cllockhart]

Of course I dread it, his parents are horrible to me and my child. They help out with their other adult children who also have kids out of wedlock, they paid the 20% down payment on his brothers $350,000 home. I wouldn't put them down if all their children and grandchildren as equals and my son and fiancé weren't getting the short end of the stick. Their other son is 28 years old and still living at home with NO bills to pay. I just feel that they should be able to help my fiancé out instead of my dad having to loan him money. They have even called my parents telling them that they need to be helping their son financially and that he should NOT have to pay my parents back. Last time I checked that isn't right. I know I am fortunate, but what does me being in school have to do with anything. I have a couple months left until I have my masters. At that time I will be able to afford giving my child everything he could need or want. And my fiancé will still be making minimum wage and not able to afford taking care of his child.

I just don't feel he is our shared child. I take care of him 99.9% of the time, I don't get financial support, and he doesn't want to see his child when given the chance to. My child is scared of him. He starts screaming and crying when his father enters the room. My child doesn't even know his father so how can I feel like he is our shared child when nothing is shared.

I am still engaged to him for one reason, if I leave him he has told me he will take my child and move away from me. I do not want that to happen.

[AK lawyer]

You can't put where a minor child goes into your will. ...

Well, you can, but the courts are not obligated to honor your wishes in that regard.

So the father and his family couldn't care less about the child, and the father doesn't have very good income potential, right? I have an idea. Put it in your will that if your child's father will agree that your parents have custody of the child, you will leave the father a substantial bequest, conditioned upon his disclaiming custody.

Bribe him, in other words.

And remember: if you do marry him, he gets a large percentage of your estate whether you provide for him in the will. So that plan wouldn't work if you married him (at least without a prenuptual agreement).

Hopefully it goes without saying that you need to have an attorney write all this up for you.

...
I am still engaged to him for one reason, if I leave him he has told me he will take my child and move away from me. I do not want that to happen.

You are a graduate student and you have fallen for that line? Amazing! Do you mean he would simply take the child? You need to go to court right away, and get a custody/visitation/support order.

[joypulv]

Wait, now your dad is loaning your fiancé money?
Why?
This story is starting to make sense in some ways but less in others, including why you would stay with a man you don't like and yet believe anything he says. (I personally wonder if that is really why you haven't broken up with him, since I don't believe that you really believe he could just 'take' the child.)
What his parents do with each of their children is no business of yours. Maybe they really don't like him. Maybe they know the relationship is doomed. Maybe there's something about how the house is only in your name. Maybe they see him as a PWT (Putting Wife Through school) who will be dumped as soon as you have your career. There's no 'short end of the stick' to get or not get. If they started helping him out, would that change how you feel?

If the law says that he is the father, and you don't like that, you have to hire a good lawyer and fight, and a lot will depend on how much he fights back.

[cllockhart]

Haha... PWT... If not paying for anything, ever is putting me through school, then I'm amazed. And how can you say he can't take my child? Last time I checked it's called kidnapping. He has threatened it and he would do it.

Joypulv, I really don't know why I am having to defend how I feel about my son's other side of the family to you. I know how I feel about them and I know that they are not what is best for my son. I know that they would be detrimental to his upbringing and God forbid if anything should happen to me I would not want the son, that my life revolves around, to end up with his other scum of grandparents. I want him to be somewhere where he is loved. I also don't know why I have to defend my relationship to you. I never said I don't like him. I just don't like the things that he does. There is a big difference. Yes, we probably wouldn't be together if he hadn't threatened to take my son from me, but that doesn't mean I don't like and care for the guy. I want my son to have a father.

I really don't care how they feel about me, I don't even care that I don't like them, I just don't want my child to be anywhere near them. He is from a very large family and half of his family members are in gangs and in jail. I don't think that that is a wonderful place for a child to grow up. His brother that is 28 and still lives at home has gang affiliations. I NEVER want my child around this.

I DON'T NEED OR WANT ANYONE TELLING ME THE WAY I THINK IS WRONG. I JUST WANT TO KNOW WHAT I CAN DO TO MAKE SURE IF ANYTHING EVER HAPPENS TO ME THAT MY CHILD WILL NOT END UP ANYWHERE NEAR MY FIANCE'S PARENTS!

[cllockhart]

Thank you for your advice. I am not at all in the legal field obviously,so you will have to work with me. What is a substantial bequest? And I will definitely have a prenup if we do end up getting married. And yes, I am scared that he would simply take the child, move to another state and lay low. He has a lot of family wrapped up in crime and it wouldn't be much trouble for him to change his identity and simply start a new life.

[cllockhart]

Okay... back story on why my dad is loaning money is because his name is also on the home loan. I am named first on it and my father is second. So if the house goes unpaid the bad credit will fall upon me and my father. He doesn't want this to happen so when my fiancé decides not to make his half of the house payment for the month, my dad goes ahead and pays his portion and he is supposed to pay my father back. He hardly ever pays my dad back though. This is not the current issue at hand but does make up part of the reason that I would not want my child to be raised by someone that does not want to use his money to help his family. I worry that he will not buy clothes, food, or even pay for a roof to go over my child's head if something should happen to me.

[Fr_Chuck]

Really right now, who is paying what, who is doing what means nothing to the custody of your child if you die.

The child will go to the family member according to state law where you are at. In most cases it will be the father if he wants the child.

[ScottGem]

First, when posting a follow-up question or info, please use the Answer options at the bottom of the page rather than the Comments.

Second, you posted this in the Family Law forum. That means are answers are going to deal with the legal issues. When what you "think" runs counter to what the law says, then we have to tell you that what you think is wrong.

Your initial post gave no reason why you didn't want the child going to his parents. As noted, you can put your wishes in your will, but the courts will generally ignore that when choosing where the child goes. So, they will look first to the father, then to the extended family.

Do you really believe your fiancé would ruin his life, by kidnapping your child, which would mean going on the run and living underground? Yes it's a possibility, but a remote one.

But the bottom line is you need to get out of the relationship by going to court, filing for primary physical custody and child support.

[joypulv]

It wasn't my intent to attack you; I just don't understand why you are still together, and if it really hinges on fear, then start proceedings now (from all the legal options stated here) and ask about ways to protect your custody arrangement. You could have your child fingerprinted, and photographed monthly, and so on.

[cllockhart]

Well then I guess my question now is if I try to get full custody and I die, is there any way to protect against this not happening? If I do get custody, will my he still get custody back if I die or can the parental rights go to my parents if I put it in my will?

[cllockhart]

I apologize, I wasn't trying to argue with any legal advice. I felt like I was being told that my thoughts and feelings about his family were wrong and I'm sorry but that is the way I feel. I just want to know how to protect my son.

[Synnen]

Haha... PWT... If not paying for anything, ever is putting me through school, then I'm amazed. And how can you say he can't take my child? Last time I checked it's called kidnapping. He has threatened it and he would do it.

It's NOT kidnapping if you do not have court ordered custody.

Without court ordered custody, BOTH PARENTS ARE EQUAL. It would not be kidnapping because unless you have it set up through the courts to be different, BOTH PARENTS have EQUAL rights to the child.

[Synnen]

The bottom line is this:

If he is the legal father, or FIGHTS (in court) to be the legal father, your will would mean absolutely nothing if he wanted the child upon your death.

The ONLY thing that you can do is document, document, document so that your parents could have the POSSIBILITY (no guarantee) of going to court upon your death to fight for custody.

And frankly, if you don't want him to have custody upon your death, you need to go to court to get primary physical and legal custody (and I wouldn't do it without a lawyer) and then break your engagement. If you MARRY him, you are essentially telling the courts that you believe him to be good enough to legally bind yourself to him, so why wouldn't he be good enough to raise the child?

[AK lawyer]

Well then I guess my question now is if I try to get full custody and I die, is there any way to protect against this not happening? ...

I think the plan I suggested has the greatest chance of success. You asked how much is substantial: you know him: how much would he take to go away? $20,000 is the figure that popped in my head, but I don't really know. Or give him something that he could only keep as long as he didn't go for custody. Give him the house.

... If I do get custody, will my he still get custody back if I die ...

I believe you have already been told: yes.

[excon]

And how can you say he can't take my child? Last time I checked it's called kidnapping. He has threatened it and he would do it.

Hello c:

Sorry to burst your balloon. He's the father. Without a visitation agreement, he can take his child anytime he wants. It's not called kidnapping. It's called fatherhood.

When, and if you die, he's FIRST in line to get him/her. So, instead of fighting to change what you CANNOT change, why don't you encourage him?

excon

[cllockhart]

Thanks for all your help. Now what if both of us die at the same time and he doesn't have a will? Would my son be able to go to my parents if that were the situation?

[excon]

Would my son be able to go to my parents if that were the situation?

Hello again, c:

When, and if that happens, the court will decide. Your child will be given his OWN lawyer, who will represent HIS interests. Maybe the other grandparents won't even try to get custody...

excon

[ScottGem]

Thanks for all your help. Now what if both of us die at the same time and he doesn't have a will? Would my son be able to go to my parents if that were the situation?

There is no way to predict this. But you have one thing going for you. If I understand things his parents live far away and your parents are close by. In that case, you make sure your parents spend time with the child, establish a relationship. I don't recall if you said how old the child is but if the child can recognize and know grandma and grandpa, then the courts would probably lean towards them. However, if he survives you, then he will get custody, if he asks for it. Your parents may be able to get some visitation under grandparents rights, but they would have to go to court for it.

As noted, currently you have equal rights. If he takes the child and hides him from you and your family, that could be considered parental kidnapping. But if he just takes custody, then you will need to go to court to get custody back. You really need to consult an attorney to get your rights setup legally.

I do have to ask here, are you ill, is there a health concern or are you just worried about the future. Hopefully, the issue of what happens to your son won't become an issue until he's old enough to speak on his own behalf.

And yes, please understand that we ARE trying to help you. Explaining to you the working and limitations of the law with respect to what you want is help.