Blended Families

appointing a guardian/will question

I have sole legal and physical custody of my 3 year old son.  I wanted to see if anyone here has any knowledge on what I can do (if anything) to appoint a guardian for him, other than his BD, if something were to happen to me?  I would like to appoint my sister, but I don't know if there is anything I can do legally to make it so that she would get custody of DS rather than his father?  Do parental rights trump any legal document I may have written up?  Even if I have sole legal custody?


Re: appointing a guardian/will question

  • I am not a lawyer.  And none of the women on this board are lawyers.  You will need to talk to a lawyer to know what the laws/precedents of your state are. 

    with that caveat - I would say that unless the BD's rights have been legally striped or reminded then you are SOL. 

  • We just talked to a lawyer about this when we did our wills.  We were told that appointing me as SS's guardian via the will gives me a leg to stand on in court and I would have a chance at a fight with BM's history with CPS, drug use, alcohol use, and domestic violence on top of the fact she sees SS once a year if we force it (we actually sat outside of her work, waiting for her to get off JUST so she'd see him) and calls every 2 months MAYBE (which she usually just talks to DH about her life).  We are documenting all of it so if something happens to DH, I have it.  I am also aware that I would need a top-notch attorney to fight for him and could STILL lose if the judge feels being with his BM (who is a POS) is better than being with me (who has been in his life for 5+ years, he calls me 'mom', and I'm well equipped to raise a child with autism whereas she really is not).

    "To be able to practice five things everywhere under heaven constitutes perfect virtue...gravity, generosity of soul, sincerity, earnestness, and kindness."
  • I agree you need to talk to a lawyer.

    When I talked to one (DH is not the boys' biological and one is autistic) I was told that me writing up my wishes and info as to why I felt that DH would be a good option in the case of my death would merely let the judge know of MY wishes. Leaving any documentation as to when ex visits, the set up stipulations of current visits and my wishes for it to remain the same (showing I am not trying to cut Ex out) and things of that nature would give DH a fighting chance. But nothing short of Ex allowing adoption would ensure it.

    So I was told to write one up and have it notarized with a witness. Included with my wishes and an explanation of why (be sure not to make this a book) I have a constantly updated record of visitation (where and how long and if I was the one to initiate it), notes of missed holidays, The therapists C sees including the one who deals with the abandonment issues left by Ex's actions, ever 3 months a record (receipts if I have it) of things we spend on C for his sensory needs (proving about how he is not cheap financially), I have notes from a dietition and nutritionist on how the food and the change of diet we have K on has greatly helped his acid reflux and how he needs to remain on it as well as a note from Pedi on how severe it is.

    Also I am updating it since DH and I are about to have our 2nd daughter together. I would like to keep siblings together.

    I did have help writing the "why living with DH would be better" part. I do not want to sound attacking... but the fact is, Ex has lived with his mother for 4? years now. He has yet to work a steady job that is not under the table. Still has not paid the $800 to get his license back, He lives there with his 3 brothers who are all 20-27 years in age (Ex is 32). There is no room for kids. Ex does not even take care of his own acid reflux, they eat poor food (eat out 2 meals a day) and 3 of the adults there are pre diabetic.

    We work very hard to keep the extended family in the picture and if I died, I would never wish to cut them out of the boys' lives. Still, their father is not able to care for them properly and in 4 years has proven no drive to do better for himself.

    Anyway. Sorry for the book. Basically, you can try it, but the judge may ignore it because the other parent still has parental rights. You writing one up only lets them know your wishes and gives your DH or sister a leg to stand on if they fight for the child.
    DS1 - 6/07
    DS2 - 8/08
    DS3- 9/09
    DD1 - 11/11
    DD2 - 10/13
    DD3 - Csection Scheduled November 29th
  • image pinkitty:

      Do parental rights trump any legal document I may have written up?  Even if I have sole legal custody?

    In my state (MO) yes. Several years ago BF and I went through a lawyer to create our own custody order. I wanted it put in the CO that in the event of my death that DH would get my share of custody as outlined in the CO. BF was more than willing to agree to this. Our lawyer said a judge wouldn't sign off on it since a CO can't trumph other custody laws. If I were to die then BF would have every right to have DS full time if he wanted to.

    Since then BF has decided he didn't want to be a parent. DH has now adopted DS so if anything ever happened to me, DH would have full custody since he is now the other legal parent.

    Edit: This CO gave me full legal and physical with BF getting specific visitation.

    Mom to Angels. Chemical Pregnancies 08/03, 04/04, 10/06, 12/21/10 -Gabriel with us for 6w 5d,BFP 5/25/11 -Jade with us for 5w 3d

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    Stepmom to K 02/14/04 and A 12/17/04



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  • image pinkitty:
    Do parental rights trump any legal document I may have written up?nbsp; Even if I have sole legal custody?

    Why wouldn't his legal rights trump your wishes if you were not able to raise your kids? Unless you can show a very good reason why your child's father should not have custody then your DH would not have a chance. And even if you have documented reasons why tree is still a good chance the father would win unless he has no legal rights to the child.
    Jen - Mom to two December 12 babies Nathaniel 12/12/06 and Addison 12/12/08
  • Talk to a lawyer. But from everything I understand step parents have absolutely no rights. Meaning if something happens to you then custody automatically goes to their Dad. It doesn't matter what your wishes are in the will, custody laws over rule a will. Unless BF has had all his parental rights stripped than he is is Dad and custody should revert back to him.

    A lady in the little town that I'm from had a dd4 and BM passed away in a horrible car accident. BF had only seen the little girl once in her life and never paid any child support. Little girl had been raised her whole life by BM and SF. It was a bitter long custody fight but did not matter BF got full custody for the simple fact of he was her Dad. BM's family did not even get visitation.
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