I have had sole custody of my two children ever since I got divorced 7 years ago. I am about to get re-married, and my new husband and I are revising our wills to reflect the new marriage. If I name my new husband as the legal guardian of the children in the event of my death, will he get custody of the children, or does custody automatically pass to the non-custodial parent upon death of the custodial parent?
Death of Custodial Parent
Posted 07 May 2010 - 06:27 AM
We cannot know what "will" happen/what some judge would decide. No, custody wouldn't automatically go to the other parent if you're the only person with sole legal and physical custody (though it's not clear from your post what "sole custody" really entails). It's not clear how we can know what "will" happen/what some judge would decide.
Even if you have sole legal and physical custody and the other parent has no visitation rights, etc., that doesn't mean he cannot seek custody of his children if you kick the bucket. If he has visitation rights and your "sole" custody is only in terms of the physical and there's nothing monstrous about the dude, the court may well find that it is in the kids' best interest to be with their father.
The court will take into account your known preferences, that doesn't mean it will happen.
I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics. If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable. Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.
Posted 07 May 2010 - 06:30 AM
Posted 07 May 2010 - 07:46 AM
Posted 07 May 2010 - 08:36 AM
Posted 10 May 2010 - 02:55 AM
Posted 10 May 2010 - 05:54 AM
Posted 10 May 2010 - 11:05 AM
"I do know that the courts will generally uphold a valid will and the appointments made therein."
I don't disagree that courts generally will honor the wishes of a deceased parent regarding guardianship of minor children. However, they are not legally bound to do so, and one of the major exceptions is where the other parent is still living and has been divested of his/her parental rights. I agree that discussing this with local counsel is the smart thing to do.
Posted 11 May 2010 - 09:31 AM
Family Law attorney (FindLaw Lawyer Directory) to discuss what options are available to you.
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