I’m trying to work out a settlement with my soon-to-be ex-wife, and one of her requests is that if she passes away, custody of our kids (twin girls 16, boy 12) would go to another family member. I said no, so it’s not part of our settlement. But I’m concerned that she could still put it in her will.
I have full parental rights, though I currently live out of state. I plan on moving back to NY by the end of 2025. How would a court view a will that says custody should go to someone else?
I don’t think a will can decide custody.
Whatever her will says won’t take away your parental rights.
This sounds complicated, and it’s best to talk to your lawyer. Every situation is different. In my case, since my son’s dad has no custody and is seen as unfit, my lawyer told me to put my wishes in my will, with extra steps to make sure he wouldn’t get custody if I passed. Definitely worth consulting an attorney who knows the details of your case.
A will can only give away property. Children are not property.
You’re the biological father, so you’d automatically get custody, regardless of what she puts in her will.
Quin said:
You’re the biological father, so you’d automatically get custody, regardless of what she puts in her will.
Exactly, that’s right.
Quin said:
You’re the biological father, so you’d automatically get custody, regardless of what she puts in her will.
Exactly, you can’t just will someone else’s kids.
As long as you’re the biological father and on the birth certificates, the court won’t consider her will over your parental rights. Someone named in her will could try to gain custody, but unless you’re unfit, they wouldn’t get far.
She’s basically asking you to give up your parental rights through her will, which doesn’t really work that way. If she dies, custody would naturally go to the surviving parent, unless there’s a major reason why that wouldn’t be in the children’s best interests.
If one parent passes, custody typically goes to the surviving parent.
Even if both parents were to pass, the will doesn’t ultimately decide who gets guardianship. That’s up to a judge, who will consider the children’s best interests and may follow or ignore what’s in the will.
If she does pass away and you’re still around, you’d automatically get full custody.
Unless she has sole custody, custody would go to the other parent if she passes.
Kerr said:
Unless she has sole custody, custody would go to the other parent if she passes.
I wonder if there’s a specific situation here?
I have sole custody and guardianship of my child. If I wanted my child to go to someone else, I’d need to sign a document in advance giving that person guardianship if something happened to me.
@Shan
That makes sense. But as long as both parents are alive and involved, I’d expect the biological parent would take custody if one parent passed, unless there’s a serious issue preventing it.
Kerr said:
@Shan
That makes sense. But as long as both parents are alive and involved, I’d expect the biological parent would take custody if one parent passed, unless there’s a serious issue preventing it.
You’re right, but if the child has other legal guardians, it could be different.
Maybe the father not being in the same state is a factor? Or maybe there’s something else that makes this more complicated?
@Shan
I am the biological father. I stay in regular contact with my kids through calls and texts. I try to visit for birthdays and holidays. I’m also hoping to be back in NY for work soon.
Dale said:
@Shan
I am the biological father. I stay in regular contact with my kids through calls and texts. I try to visit for birthdays and holidays. I’m also hoping to be back in NY for work soon.
You should probably go to family court and apply to update the parenting order. In your application, explain what you’re asking for and why, and keep the wording clear and respectful. It could help ensure your rights are protected.
@Shan
I’d think you’d have a say in guardianship unless you agreed to it. My ex might try to use his family for more rights, and that’d be tough to handle.
Kerr said:
@Shan
I’d think you’d have a say in guardianship unless you agreed to it. My ex might try to use his family for more rights, and that’d be tough to handle.
I’m planning on taking out life insurance for her to help cover legal costs in case this issue ever comes up.
Kerr said:
@Shan
I’d think you’d have a say in guardianship unless you agreed to it. My ex might try to use his family for more rights, and that’d be tough to handle.
I get it. I’ve seen my ex do similar things with multiple guardians for our child. Here in Canada, the court does have certain requirements before granting guardianship, though.