Do children automatically go to their biological parents?

[mama_ani]

If a parent with sole physical & legal custody dies do the children automatically go to the other biological parent? In my case I have three children with my first ex-husband and two children with my stbx. If I died does that mean the children get split up? I don't have a will, if I could find someone to be guardian to all of the children would that trump biology? Does anyone know? I'm in Canada if that impacts it at all.

[SoulCakes]

I don't know but I'm eager to hear the answer to this question. I'm currently debating about having a second child but can't bear to think that they'll be split up if I die.

[JunipersMom]

They'll be split - unless the two other families decide together that they stay together.. AND it will be up to the two families to keep them in contact with visits etc.. In my state (michigan) we have grandparent rights so that the parents of the deceased can go to court for visitation - so if you have that you could ask your parents to try and get the kids at the same time so they can all be together. But I would just try not to die

[philomom]

Yes. Unless the bio parent is in jail or unfit in some way, they will get them.

[LoveOhm]

Adding to the OP's question - What action can a custodial parent take to have the children go to a guardian and not the the non-custodial parent?

In my case I will have sole physical and legal with no visitation to the non-custodial parent..... so the NCP will be a stranger to the child if something were to happen to me.

[Avani]

There is nothing that can be done except the guardian can go and fight in court over the custody. The guardian would have to have a lot of evidence and witnesses to back them up or the biological parent can sign off their rights. In my case with abuse and a restraining order in place against my ex he will still be given all custody if something happens to me. Scary huh?

[Holland73]

Originally Posted by Avani

There is nothing that can be done except the guardian can go and fight in court over the custody. The guardian would have to have a lot of evidence and witnesses to back them up or the biological parent can sign off their rights. In my case with abuse and a restraining order in place against my ex he will still be given all custody if something happens to me. Scary huh?

This is why I have a VERY large life insurance policy with my parents listed as the beneficiaries.

So, IF my X decided to go for custody after I died, my parents have the funds to fight tooth and nail for ds.

[Holland73]

Originally Posted by LoveOhm

[FONT="Century Gothic"]Adding to the OP's question - What action can a custodial parent take to have the children go to a guardian and not the the non-custodial parent?

Honestly, any will can be contested, especially by a biological parent. It'll ultimately be up to the courts.

All you can do is be very explicit and thorough, not only with your will (make sure you include all documentation such as custody papers, etc, but also with your child's potential guardian.

AND... make sure there is money (a hefty life insurance policy) for those guardians to fight such a battle.

[NolaRiordan]

Originally Posted by Avani

There is nothing that can be done except the guardian can go and fight in court over the custody. The guardian would have to have a lot of evidence and witnesses to back them up or the biological parent can sign off their rights. In my case with abuse and a restraining order in place against my ex he will still be given all custody if something happens to me. Scary huh?

This is exactly what my lawyer told me as well. At least here in Michigan if there is a biological parent alive when the primary parent dies the kids will go to the other parent. In my case I documented the visitation I want with my side of the family and my lawyer said there's a good chance a court would grant that-- but no guarantees.

[SamiPolizzi]

Whoa. Seriously? Even if you have a will? I guess I always sort of assumed that a will would trump being the biological parent, like the OP was saying.

My DS's bio dad has never been involved in his life at all other than meeting him once when he was 2 months old. We were never married. He's not on the birth certificate. I don't even know where he lives. Even in my case, would he still go to his bio dad??

If so, that's crazy and totally unacceptable.

Although, I guess it's not quite as crazy as splitting up siblings. I can't believe that would happen. That's awful.

[meemee]

Originally Posted by SamiPolizzi

Even in my case, would he still go to his bio dad??
in your case what proof is there that he is the father? was paternity ever established? if not the only way he can get your son is to fight for it in court after establishing paternity - dna testing. but it would take that action on his part.

Although, I guess it's not quite as crazy as splitting up siblings. I can't believe that would happen. That's awful.

ahhhh mama yes it is AWFUL but it happens soooooo very commonly. it is v. common to split up kids - even from the same parent because of $$$ issues. many times its both parents who pass and the rest of the family split up the kids because they cant afford to take all the kids.

[SamiPolizzi]

Okay, that's sort of what I thought. I did the "do it yourself" paternity test, which does not hold up in court.

[Teensy]

You could consult an attorney now about having the bio-dad's parental rights terminated if he is not involved in any way. A TPR would eliminate the after- death concern (especially if step-dad adopted the kids), but if might be opening a big old can of worms.

[Avani]

Well in your case i don't know that i would worry. If by some chance he found out you died then he would have to petition the courts, which could take some time. Establishing paternity etc could take awhile. And you are going on the chance he even found out. Would anyone you know tell him? I personally don't read the obituaries so maybe you have nothing to worry about. I do want to add that here in CA when a noncustodial parent has made no attempt to contact child or pay support for a six month period that abandonment can be filed as long as you have someone available to stand as guardian or adopt your child as the secondary "parent". Just a little food for thought.