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Death of Custodial Parent


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#1 DitzyDot

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Posted 07 May 2010 - 06:18 AM

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?



#2 Fallen

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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.  :)


#3 Ted_from_Texas

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Posted 07 May 2010 - 06:30 AM

Children cannot be bequeathed in a will the way a boat or house might be, and guardianship can only be awarded by a court of competent jurisdiction.  Your will is not binding on the court, but usually the court will at least take your wishes into consideration.  A lot depends on why you had sole custody to begin with.  The kids' other parent's right to custody trumps your will unless there are facts that make it apparent that awarding custody to him is not in the children's best interest.  Consult local counsel.

#4 pg1067

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Posted 07 May 2010 - 07:46 AM

Children are not chattels, and you cannot direct their disposition in a will.  Therefore, "nam[ing] [your] new husband as the legal guardian of the children" is meaningless.  All you can do is express a preference about what happens to your children after you die.  As a general matter, unless the father is somehow unfit, custody would go to him.

#5 DitzyDot

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Posted 07 May 2010 - 08:36 AM

I do not think of my children as pieces of property or chattels, and I understand that they aren’t ‘inherited’.  Don’t be ridiculous.  A parent can name a guardian in a will, however, to care for the children in the event of death and that is in fact one of the most important reasons for having a will.


 


I have sole legal custody in that my ex-husband cannot make any decisions concerning the children’s schooling, health care, religion, etc.  He basically has no parental rights other than visitation.  I have sole custody because he was abusive.


 


I understand that anyone could petition the court at any time for legal guardianship, but I’m curious to know what happens by operation of law.  Let’s say, for example, we’re all in a car accident together, I die and the kids are injured.  Who, in that moment, would have the legal authority to authorize their medical treatment?  My ex-husband does not have that legal right now, but would he acquire it automatically upon my death, or would that right be vested in the guardian appointed in my will?



#6 pg1067

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Posted 10 May 2010 - 02:55 AM


"I do not think of my children as pieces of property or chattels, and I understand that they aren’t ‘inherited’.  Don’t be ridiculous."


 


We're not being ridiculous.  Your post clearly suggests that you believe or believed that a person can dictate through a will who will be the guardian of his/her child(ren) following his/her death.  The sole purpose of a will is to direct the disposition of property.  Therefore, since children are not property, any statement in a will that purports to direct what happens to them is nothing more than an expression of opinion.


 


"A parent can name a guardian in a will, however, to care for the children in the event of death and that is in fact one of the most important reasons for having a will."


 


A parent can make a statement in a will regarding what becomes of his/her children following his/her death.  However, such statements are not binding on courts.  One could make such statements in virtually any document and they would carry as much weight.  Note, by the way, that we're speaking in generalities here because you didn't identify your state.


 


"I understand that anyone could petition the court at any time for legal guardianship, but I’m curious to know what happens by operation of law.


 


As I already said, as a general matter, custody would go to the surviving parent.  If someone else wants custody or a guardianship, such a person would have to petition the courts and demonstrate that the surviving parent is somehow unfit.


 


"Who, in that moment, would have the legal authority to authorize their medical treatment?"


 


The surviving parent.


 


"My ex-husband does not have that legal right now, but would he acquire it automatically upon my death"


 


Yes.



#7 DitzyDot

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Posted 10 May 2010 - 05:54 AM

I appreciate your responses; however, I disagree that wills are merely ‘expressions of opinion’.  I worked in estates and trusts prior to working in-house at a corporation, so I do know that the courts will generally uphold a valid will and the appointments made therein.


 


I have punted my questions concerning guardianship and custody to my E&P lawyer and my matrimonial lawyer, and I’ll see what they say.


 


Thank you, again, for attempting to address my questions.



#8 pg1067

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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.



#9 FindLaw_Michelle

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Posted 11 May 2010 - 09:31 AM

Below are a few resources on child custody and estate planning that may be useful in your research.
Contact a local Family Law attorney (FindLaw Lawyer Directory) to discuss what options are available to you.

Good luck.





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