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Wills and avoiding seperation of children

post #1 of 11
Thread Starter 
Ds1 and ds2 are biologically my xh's and ds3 is my dh's biological child.

Xh and I have joint legal custody and I have sole physical custody. Xh sees the kids once every few months. It's inconsistent bc he has no vehicle, no permanent place to live (for more than a few wks or months anyway), and can't be bothered to call them regularly. Per our parenting agreement if he wants to see the kids we meet somewhere so he can spend time w/them or he comes to our house (dif town so that's only happened a couple of times). I don't trust him to take the boys anywhere bc he has given me many reasons to not trust his judgement.

Anyway....dh and I want to get our wills taken care of (been thinking about this for months/yrs) and haven't done so bc it's a sticky situation w/the older boys. If something were to happen to me, or dh and me, xh has the legal right to take ds1 and ds2. We absolutely do not want this to happen for a variety of reasons.

So what do we do? Have any of you dealt w/this kind of situation before? Would it be enough if I were to convince xh to sign a notarized letter stating our wishes? If that were binding at all it would at least buy the named gaurdians some time and assure that they would have to go before a judge, right?

If something were to happen to both dh and me we would really like to keep our children together (they would go to my sis and bil who we share parenting and life philosophies w/ and who they are very close to), but also, if something were to just happen to me I would like my boys to stay w/dh (who for all intents and purposes is their dad and they relate to him that way and are very close to him), and I would hate for them to be seperated from their baby brother and lose me all at once kwim?

I think we're going to have to talk to a lawyer about this but any advice, btdt or not, is appreciated. Thanks!
post #2 of 11
I have a similar situation with my kids. My x is a decent guy though and an awesome father to my dd so I don't have that issue. I still don't want my children separated in the event that something happens to me and my dh. I went to get a will together (DH is Army and deployed) and was told by the attorney that I had no (NO) legal recourse to keep my kids together unless I granted my x guardianship of my ds. I know that DH isn't going to EVER agree to that!! So I completely understand. Sorry I don't have any good info for you. Could you have him deemed unfit?
post #3 of 11
We have a similar situation, however the issue is towards my husbands ex.

Legally speaking, the other biological parent that has JOINT LEGAL custody has first right to the child, regardless of what is written in the will. In our case we've listed the people we'd like BOTH children to go to TOGETHER, but we still understand that legally DSD is most likely going to her mother in that event. We did stipulate that while we'd like our children together, if DSD goes to her Mother, we'd like DS to go to somebody else on the list (simply put, we'd like BOTH kids to stay together, but if my step daughter goes to her Mom, we don't want our Son to go to).

I'd highly recommend speaking to a lawyer if you have many assets you are dealing with. We've set aside what assets to straight to the kids, and what ones should be used (and in what order) to pay for the kids care, as well as how this should be divvied up if the kids split. There are also possible complications because some of the stuff that I may inherit may go to my biological children, not any step-children, as stipulated in the inheritance. In addition, we want to be sure that anything divvied up from my husbands side accurately goes to the appropriate children.

Anyway, that was a long extra note. Point is if your ex legally has joint custody, he can legally take your son if he wants to. Just be sure to leave other options in case he does not. Also, as long as he is safe for your children i'd not mess with anything, however if his stability comes to question, this is an issue you could bring to the court, although again, this would likely be a costly scenario.
post #4 of 11
When you talk to a lawyer, ask about your DH's legal right to contact with his stepchildren in the event of your death, and your youngest child's legal right to contact with his brothers. You may not be able to keep them under the same roof, but that would be enough to keep them not-strangers (and plenty of blended families are glued together with EOW arrangements.)
post #5 of 11
Originally Posted by phurryjenn View Post
.Legally speaking, the other biological parent that has JOINT LEGAL custody has first right to the child, regardless of what is written in the will.

PhurryJenn - I have SOLE custody of our dd. XH has visitation rights. Even so, in the event of my death (even if DH is still alive) my dd will go to her father. I asked if there was anyway I could stipulate that I wanted my dd to spend time with her brother during the summers or holidays and the attorney told me that I could not force my xh to share my dd with my ds (this is not different if DH is alive or dead). She suggested I leave a nice letter to my XH with my wishes clearly explained and that if I were lucky he would follow through with them.
post #6 of 11
Thread Starter 
See, the problem is that xh is not stable at all.

He has no job bc he keeps getting fired for one reason or another, he suffers from depression and is not getting treatment, he has injured himself bad enough to go to the hospital and according to him he was told that he couldn't get help unless he is suicidal. He's had problems w/ drugs and alcohol, he has an admitted porn addiction, and at the end of our marriage he made some bad choices that resulted in putting ds1 and me (pg at the time) in physical danger. (BTW, he is a great liar and I did not know of all this stuff, and there's more, during our marriage but when I found out I left THAT DAY.)

So there is no way I would trust him to take care of my boys in a way that would be safe, emotionally or psychologically healthy for them. Plus, he puts no effort into having a relationship w/them but is delusional bc he thinks circumstances beyond his control are responsible for him being a crappy father.

I am wondering if I can get him to sign away his rights (but I would still let him see the kids w/my supervision of course) in order to protect my sons. I don't have the money to hire a lawyer but I have read that even voluntary term of parental rights costs money.

I don't really know where to go from here.
post #7 of 11
Are there any type of family advocacy groups in your area that might be able to help you on a pro bono basis? Or may be a family attorney that would be willing to help you pro bono?
post #8 of 11
That sounds like a really difficult situation. I don't know whether you would be able to ensure that your older kids stay with your DH unless your ex signs away his rights. It would be worth talking to a lawyer, but my understanding is that, barring extraordinary circumstances, custody almost always goes to the children's living parent.

One thing that I would definitely do in your situation would be to get a good sized life insurance policy and set up a trust. You can appoint a friend or relative as a trustee of the money for your kids. That way, if (God forbid) the worst does happen and they end up with their dad, their material needs, schooling, etc. will at least be taken care of even if their dad can't provide for them due to his issues.
post #9 of 11
Honestly, you are probably not going to win this one. You can get a lawyer and try to draw it up that way, but biological parental rights that have not been terminated are going to trump almost ANYTHING. You are correct that the best case scenario would be to have your x sign away his rights, but honestly, there isn't any good reason for him to agree to that. What would be in it for him? (note, I'm just playing devils advocate here)
How much of the alcohol/drug abuse, mental health issues can you prove/is on record? That might help a bit, but again....crappy people are allowed to be parents. And American courts are heavily swayed towards biological parents.
Would your h be willing to adopt your kids? If you could get xh to sign away his rights and h to adopt them, it would solve your problems.
post #10 of 11
Thread Starter 
I can't prove any of the things I know about xh.

Dh wants to adopt the boys so if xh signed to term his parental rights (he owes thousands in back child support so that might be a reason for him to consent) then we could do it that way. I don't know if I can convince him to do that though bc in his mind he is a good dad and he thinks that life is just unfair to him for some reason.

I guess that's the only way to do it. I hope and pray nothing happens to me bc I couldn't imagine my boys having to go from our home to a life like the one xh lives. His mental health issues along w/his selfishness and refusal to take responsibility for his life is just pathetic and depressing.
post #11 of 11
Really the first thing you need to do is to go after your back (and current) support. Was this an agreement that they two of you have? Was it ordered in your divorce proceedings at a certain amount?

If you are trying to get him to sign over rights, going after his past support with the threat of jail (not from you, from a judge) he might terminate his rights. My xh went through this with an ex of his with whom he had a son with that he didn't believe was his (whatever!). She went after him for his back support (about 7 grand) and told him that if he agreed to terminate rights she would only collect the back support and that he would not be responsible for future support. That was an attractive deal to my x and he quickly terminated his rights. I am not saying that your x would be willing to do the same, but you should be getting support for your kids.
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