In the event of your passing...

[Halfasianmomma]

...what happens to your children? I'm asking those single mamas who have sole custody? Do you have a will in place that names a guardian for your children?

I know this is a morbid question, but it's been on my mind since XH made threats a while back. I wondered if he would get custody of DD if I should die suddenly.

I know I need to speak with a notary, I'm just wondering what other mamas have done about this.

[NolaRiordan]

My lawyer told me if one parent dies the other biological parent is pretty much guaranteed to get the kids. I'm sure it's different in different states. And it may depend on the custody situation of the kid prior to the death of one parent. I did set up a trust and estate plan for my kids. I specified a guardian if my X spouse was dead too. But assuming he's not dead and has the kids I listed what I want for visitation for my family. My lawyer said he could try to contest that and block access to my family if he wanted but that because I specified what I wanted in a legal document a judge would likely honor it. To me this is really important to figure out so your kids are taken care of.

[Hollycrand]

HAM,

In the event of the death of one of the parents, in the event of the absence of a will I believe the custody would go to the father if they can contact him.
In Quebec a will can be done in many ways and still be legal as long as there's the signature and the date:

1) You can write one yourself (be handwritten, and be signed by you - date and place are optional, but are VERY helpful)
2) You can write one yourself, in the presence of 3 witnesses, including a lawyer
3) Notarized will or testament

The notarized testament is an authentic document and does not have to be verified by the Court.
The other two documents (witnesses or just written yourself)

[RollerCoasterMama]

PPs nailed it. If there is a biological parent living and their rights haven't been terminated, that's pretty much it even if you've got a will. Years ago, a friend died in a car accident. She had specifically arranged another guardian in her will, and died thinking her 8 yr old would go with that person...but her son went to his father and his mother's side of the family has a lot of difficulty seeing him over the years. (Oddly, later, I became friends with the woman's sister and didn't realize they were related until a year or so later when it clicked. So I heard some of the follow-up I might not have otherwise.) That scenario always stuck with me.

I accept that DS would go to his dad. But there are no safety issues there. Even so, I'm appointing someone else to be in charge of his finances because, as well meaning as XH might be, he sucks a$$ with grown-up decisions. He can take out a whole unit of soldiers with just a couple of other guys, but he can't balance a check-book to save his life, and he'll listen to anyone that sounds like they know what they're talking about without doing follow-up research.

HAM, with the bit of background you've shared, it's probably worth a really good estate planning attorney. I don't know if you legally could appoint a guardian that would trump your ex if he was around and willing to take custody. In the U.S., it would be really difficult if not impossible in most situations. It's not morbid...it's very smart of you to think about this. Having a plan in place now, when there's not a crisis and you have time to think things through and research, is a very very good idea.

[Halfasianmomma]

Yes, this is the thing. XH is an verbally and emotionally abusive active alcoholic and drug user who has a criminal past and who regularly entertains delusions that he and his progeny are superhumans destined to lead humanity into a new era once "the Apocalypse" has killed off most of the world. He hasn't seen DD since May. She doesn't know who he is. I can't imagine the trauma DD would go through if she were dropped in his "care" should I pass.

Guess I'd better save up some money for a consult with another lawyer.

[PoppyMama]

My biggest fear is that I will die and my children will automatically go to my x who was horrible and hasn't been a stable presence in my childrens lives (or really in their life at all except to occasionally pop up and make promises and then disappear) since they were very little. My only idea is to get a life insurance policy to help with the kids but put my partner in charge of it so that my x will get no direct access to money. The money can be used to fight for custody of them, buy my x off or if all else fails be there to help them when they become adults.

[philomom]

Yep, unless your ex is in jail... the surviving bio parent gets automatic custody.

[mama_ani]

It breaks my heart when I think about the kids automatically going to their bio-dads. Not because I think they'd do a bad job, I think the kids would be "okay" but because it means my kids would be split up. The girls would go to their dad and the little ones would go to theirs. I can't see the girls' dad making any effort to keep them in contact with their siblings.
I just have to stay alive til they are old enough to keep in contact themselves.

[Avani]

The other party you name as the guardian in your will would have to prove, in court, that there are extenuating and serious reasons as to why the child should not be with their biological parent. Even with my restraining order, my ex's felon history, and the proof of abuse perpetrated, he still would legally get the kids. Someone would have to fight in court to prove he isn't fit to parent them and for the last four years I sure haven't won that battle.

[Halfasianmomma]

Good god that's frightening. My X is not well, mentally that is. His own mother offered to come testify against him if it would help me keep him out of DD's life.

[MamitaM]

i'm wondering the same thing. i have to make somethig in writing soon and sign it with a notary. but what if the father is not on the birth certificate? does that mean anything?

[Super~Single~Mama]

Originally Posted by Halfasianmomma

Yes, this is the thing. XH is an verbally and emotionally abusive active alcoholic and drug user who has a criminal past and who regularly entertains delusions that he and his progeny are superhumans destined to lead humanity into a new era once "the Apocalypse" has killed off most of the world. He hasn't seen DD since May. She doesn't know who he is. I can't imagine the trauma DD would go through if she were dropped in his "care" should I pass.

Guess I'd better save up some money for a consult with another lawyer.

Haven't read past this, but it doesn't matter unfortunately. If he comes forward after you die, and his rights haven't been legally TERMINATED (even though you have sole custody his rights have not been officially terminated unless you go through a TPR hearing), he gets your dd. I know it sucks, I know it isn't right - BUT the likelihood of you dying is very small.

[*MamaJen*]

I've been thinking about this as well, and I've come to the conclusion that I really, really, really can't die before DS turns 18.

[justmama]

sucks. I am hoping that my oldest daughter's father's history of no-contact and lack of visitation for the last 8 years will be recognized in a court of law should I pass. My ex has been raising her for the last 6 years now with me and he's been her "daddy" so my hope is that if something should happen to me that a judge will look at that and realize that she deserves to be with her daddy and her sisters like she has been for 6 years instead of the man who has chosen of his own free will not to see her for 8 years. I know it's a long shot but it's my dearest wish.

[Lisa1970]

If you die, the children automatically go to the other parent. The custody court order is only between you and him and in the event of a death of one of you, the court order no longer matters.

If he murders you, then hopefully he gets caught and goes to jail so he does not get the children. Unfortunately, he likely will be given the legal right to pick who gets them. I would still put a will in place so that it is clear who you want to hopefully aid that person in a custody fight to get the children.

If he has threatened you in the past, I would keep track of it all.

[Lisa1970]

Originally Posted by justmama

sucks. I am hoping that my oldest daughter's father's history of no-contact and lack of visitation for the last 8 years will be recognized in a court of law should I pass. My ex has been raising her for the last 6 years now with me and he's been her "daddy" so my hope is that if something should happen to me that a judge will look at that and realize that she deserves to be with her daddy and her sisters like she has been for 6 years instead of the man who has chosen of his own free will not to see her for 8 years. I know it's a long shot but it's my dearest wish.

The thing is, if the biodad is not around to claim the child and find out you are gone, then the courts will defer to who you left the children to. It will be up to the courts to locate him and hand the children over to him, or whomever. The point is, if they cannot find the biodad, even if that is because you all just pretend to not be able to find him, they cannot place the girl with him and will likely defer to your will.

[CrazyCatLady]

Well I have sole custody and there is a restraining order for me and dd against my ex. But if I died, I know he would try and get her back. No clue if that could legally happen or not though. He's a fugitive hiding from probation for dv in another state, and I can't see that being ok with any judge.

What will honestly happen in my case is that my mother and my MIL will fight like dogs for custody of her in court. And neither one of them is fit to raise her. I do have a will asking for her to go to someone else, and that someone else should great in the eyes of the court (psychologist and very close family friend to my dd). But what a judge will really end up doing is beyond me.

I try not to think about it too much because in my case, there is nothing more I can do now to try and land her somewhere good should I pass away. It can all be argued/debated in court after the fact and I honestly do not trust the judges here to do what's best for my dd.

The thought of her being raised by my MIL makes me

[LoveOhm]

I have given a great deal of thought to this and my plan as of now is two fold....

The first item is financial: To have my life insurance policy and dd's 529 plan set up in a trust with a trustee in charge of the monies to ensure my dd's needs are met. I want there to be enough to provide the lifestyle that I would have provided if I had lived ideally (extra-curriculars, travel, college, support getting on their feet/starting their first job) and to ensure they are not a financial liability for her guardians if I were to pass. I don't expect her father to be responsible enough to manage her lifestlyle or the money so at least have the money not in his control is a HUGE step.

The second item might be a long shot but I have decided that I am going to request his rights be terminated based on abandonment. HAM you cannot do that yet.... but check what the rules are in order to request it and sit quiet - if your ex's actions give you grounds to request it you can then decide how you want to proceed. But the biggest factor in me deciding to request to terminate his rights are to ensure my parents or good friend get custody of my daughter in the event I were to pass and not some stranger (my ex) who dd has no memory of.

[Super~Single~Mama]

Originally Posted by Lisa1970

The thing is, if the biodad is not around to claim the child and find out you are gone, then the courts will defer to who you left the children to. It will be up to the courts to locate him and hand the children over to him, or whomever. The point is, if they cannot find the biodad, even if that is because you all just pretend to not be able to find him, they cannot place the girl with him and will likely defer to your will.

After someone passes, the executor of the estate would have to look - I don't think it would matter if the person who wrote the will couldn't find them - but the court will look for them. Then, if they cannot be found, or do not want custody, guardianship would most likely pass to the person identified in the deceased person's will.

There is certainly no harm in listing your preferred guardian in your will, and your reasons for that (with supporting documentation attached to the will) so that the court has your reasoning.

[Halfasianmomma]

Originally Posted by LoveOhm

I have given a great deal of thought to this and my plan as of now is two fold....

The first item is financial: To have my life insurance policy and dd's 529 plan set up in a trust with a trustee in charge of the monies to ensure my dd's needs are met. I want there to be enough to provide the lifestyle that I would have provided if I had lived ideally (extra-curriculars, travel, college, support getting on their feet/starting their first job) and to ensure they are not a financial liability for her guardians if I were to pass. I don't expect her father to be responsible enough to manage her lifestlyle or the money so at least have the money not in his control is a HUGE step.

The second item might be a long shot but I have decided that I am going to request his rights be terminated based on abandonment. HAM you cannot do that yet.... but check what the rules are in order to request it and sit quiet - if your ex's actions give you grounds to request it you can then decide how you want to proceed. But the biggest factor in me deciding to request to terminate his rights are to ensure my parents or good friend get custody of my daughter in the event I were to pass and not some stranger (my ex) who dd has no memory of.

Thank you for this LoveOhm...It's a very well thought-out plan. I think I'll try to implement it for DD as well.

As for termination based on abandonment (and hopefully changing DD's last name to mine), I believe I have to wait several years before I can even begin proceedings, and during those years, there cannot have been contact from XH or gifts. Unfortunately, he's so volatile that I never know what to expect from him...sometimes I think I've seen the last of him, and then he pops up, makes veiled threats (nothing substantial enough to warrant a RO) and then disappears again. Hopefully if he stays away for long enough, I can terminate his rights permanently.