[Leta]

I just visited my parents for three LOOONG weeks. We started talking about Madonna trying to adopt again, and my dad said he thought it was wrong that she got to adopt her youngest son because "the grandparents wanted him". This made my blood run cold. God forbid that DH and I both die and our children go to either of our parents, but especially my unmedicated, batsh!t crazy father. (I'd leave my kids to just my mom alone, but my parents are divorced and living together, so I don't even begin to trust that situation as it is, and she knows this.)

At any rate, I'd like to ask DSS's mom and stepdad to take our girls (3 and soon-to-be-born) if DH and I both die. I don't really know how to broach this topic, though, especially since this is pretty unusual situation. It makes sense to me, though, because it's a huge priority for both DH and I that their brother be a big part of their lives, no matter what. If DSS's mom died, DSS would come to us, but we OF COURSE would continue to include and have visitation with his stepdad, so this situation seems, you know, reciprocal. Plus DSS's mom and stepdad have done a great job with him, so that's a big comfort.

Has anyone else done this? Also, what's the legal protocol for this? Is it even called a living will? I'm assuming that we'd need to see a lawyer and have the survivor's benefits sent to the nominated guardian and the life insurance set up in a trust. I've never used a lawyer before, so I don't even know where to start.

TIA

 

[philomom]

No, a living will is for healthcare choices you might make for an incapacitated relative.

http://en.wikipedia.org/wiki/Living_will

You need a will. One in which you name the guardians of your choice. Do it soon for the protection of your children.

 

[Seasons]

And remember that a will can only state your "wishes" for your kids' guardians. You cannot ever guarantee who will be guardian after you die.

 

[philomom]

Quote:

Originally Posted by Seasons And remember that a will can only state your "wishes" for your kids' guardians. You cannot ever guarantee who will be guardian after you die.

The court should follow your will in most cases. Unless the person you named is dead or somehow "unfit " for the job.

http://www.legalzoom.com/legal-artic...-guardian.html

 

[ProtoLawyer]

Quote:

Originally Posted by philomom The court should follow your will in most cases. Unless the person you named is dead or somehow "unfit " for the job. http://www.legalzoom.com/legal-artic...-guardian.html

Yes and no--it depends on the state and what their standard is. In some states, it's an "unfit" standard, and in other states, it's a "best interest" standard (with the wishes of the parents given a lot of weight, but not an absolute presumption).

Also, your named guardian is not obligated to accept custody of your children--even if they say "yes" now, they could change their minds and not tell you (for fear of upsetting you, or because of the remoteness of this ever becoming an issue). For that reason, try to name a backup if you can.

 

[vegasgrl]

I just wanted to pop in and say I think it's really amazing that you have such a great relationship with DSS's mom and stepdad. Kudos to all of you for figuring out how to make that situation work.

 

[Flor]

Quote:

Originally Posted by vegasgrl I just wanted to pop in and say I think it's really amazing that you have such a great relationship with DSS's mom and stepdad. Kudos to all of you for figuring out how to make that situation work.

Yes, same here. It must be a comfort, too. One of dh's nightmares is that something happens to him and dss couldn't stay with me. He's older now, though, so he probably could.

 

[lawschoolmama]

Hi there! I'm an estate planning attorney, and I'm really glad to hear that you're thinking about these things now. It's so important.

Quote:

Originally Posted by Seasons And remember that a will can only state your "wishes" for your kids' guardians. You cannot ever guarantee who will be guardian after you die.

While that is literally true, as a PP said, the probate court will almost certainly follow your wishes unless the person(s) you name as guardian is unfit, incapacitated, or just unwilling to act as guardian (so it's good to name a secondary guardian too, just in case.). You and DH should get an attorney to draw up wills that comport with the law in your state, and name your DSS's mom and/or stepfather as guardian in case both of you die prior to your children's reaching the age of majority. Since your kids are not biologically related to the people you would like to choose as guardian, it might be helpful for the court to state very briefly what your relationship to them is. Your atty will know what to do though.

Also if you have assets that will pass directly to a named survivor when you die, rather than going through probate, like life insurance, and you want the guardian to get them if your DH doesn't survive you when you die, you should ask your attorney to help you list the guardian(s) as primary or secondary beneficiaries of those assets.

GL!

 

[lawschoolmama]

One thing I forgot...You'll want to discuss this in advance with the people you want to name as guardian, and see how they feel about it. After all, you don't want them to find out your wishes for the first time when your will is probated.

 

[organicpapayamama]

Quote:

Originally Posted by lawschoolmama One thing I forgot...You'll want to discuss this in advance with the people you want to name as guardian, and see how they feel about it. After all, you don't want them to find out your wishes for the first time when your will is probated.

great info! I was just wondering this but my situation is a little different. I a single mama and my stbx has given me full custody (legal and physical) he has no intentions on being in DS life at all. Once there is a new guy in the picture he will sign over his rights to my new husband (if that ever happens lol). my concern is what if I die before this happens? My stbx to say the least is not a good person nor does he have the best interest for DS, there is no love. Its a complicated situation but bottom line is there is nothing on file like police reports or documented violence to be "proof" of this. But he has those attendances along with other horrible traits. My first choice to watch ds would be my parents, they are older and should they be dead if this situation were to occur I do have a very close family friend that is practically family that has agreed to step in. My concern is would the state (Im in CA) prefer DS go to his biological dad who has parental rights (even though he doesnt want them) (and he has never met DS) over a loving caring family of my choice? I think if they did prefer the bio father then it would require him to sign off and allow my family of choice to adopt DS right? I dunno that he would do that.... you know because if DS were there it could be like a cinderella situation where he becomes their personal slave and they can just abuse him... Im worried about this... any info would be great.
(sorry didnt mean to high jack this thread)

 

[lawschoolmama]

Organicpapayamama--
Wow, sounds like a tough and complicated situation. I'm not a CA attorney, and can't give you legal advice--but I will say that the law prefers that a child be with a biological parent, unless and until they are found unfit or have relinquished their parental rights. Please please please find a local estate planning attorney and/or family law attorney and discuss your situation with him or her, so they can help you find the best solution for you and your LO. Sounds like you want to do everything possible to keep your DS away from your stbx, both now and in case something happens to you in the future, and so I strongly suggest you seek legal help now rather than later. Good luck!

 

[organicpapayamama]

Quote:

Originally Posted by lawschoolmama Organicpapayamama-- Wow, sounds like a tough and complicated situation. I'm not a CA attorney, and can't give you legal advice--but I will say that the law prefers that a child be with a biological parent, unless and until they are found unfit or have relinquished their parental rights. Please please please find a local estate planning attorney and/or family law attorney and discuss your situation with him or her, so they can help you find the best solution for you and your LO. Sounds like you want to do everything possible to keep your DS away from your stbx, both now and in case something happens to you in the future, and so I strongly suggest you seek legal help now rather than later. Good luck!

I was told he cannot relinquish his rights even though he wants to and I want him to. I have to have someone ready to step up and take his place with those rights. I find that hard to understand.... is that right? I know they are thinking what is best for the child in regards to child support but I dont have any intentions of collecting CS or needing it. we are doing just fine... so if everything is ok why couldnt he do this if everyone agrees? I dont understand.

 

[Flor]

Quote:

Originally Posted by organicpapayamama My concern is would the state (Im in CA) prefer DS go to his biological dad who has parental rights (even though he doesnt want them) (and he has never met DS) over a loving caring family of my choice? I think if they did prefer the bio father then it would require him to sign off and allow my family of choice to adopt DS right? I dunno that he would do that.... you know because if DS were there it could be like a cinderella situation where he becomes their personal slave and they can just abuse him... Im worried about this... any info would be great. (sorry didnt mean to high jack this thread)

I think your fears are correct. If you died while your ex still has parental rights, the state will prefer he goes with the bio parent unless that bioparent allows someone else to take him. I don't know how you can go about this a different way, other than talking to him about it now and making your wishes known. Not legally binding, but maybe if he knows there is a plan he won't fight it if the worst case happens?

 

[Flor]

Quote:

Originally Posted by organicpapayamama I was told he cannot relinquish his rights even though he wants to and I want him to. I have to have someone ready to step up and take his place with those rights. I find that hard to understand.... is that right? I know they are thinking what is best for the child in regards to child support but I dont have any intentions of collecting CS or needing it. we are doing just fine... so if everything is ok why couldnt he do this if everyone agrees? I dont understand.

I also believe this is correct. There may be a time when the state needs to collect CS from the parent (like if you applied for any state benefits, they would seek CS first) or if you died they'd want another parent available. Even if you were someday disabled and needed SSI, they would seek CS in addition to the SSI rather than give you more public money for your child's expenses. They might also require the NCP to pay for health insurance rather than a state program. So, I've found it to be true, that the state won't let one parent reliquinquish rights unless there is another ready to take the place.

 

[lawschoolmama]

Quote:

Originally Posted by Flor I also believe this is correct. There may be a time when the state needs to collect CS from the parent (like if you applied for any state benefits, they would seek CS first) or if you died they'd want another parent available. Even if you were someday disabled and needed SSI, they would seek CS in addition to the SSI rather than give you more public money for your child's expenses. They might also require the NCP to pay for health insurance rather than a state program. So, I've found it to be true, that the state won't let one parent reliquinquish rights unless there is another ready to take the place.

Yup, my cursory reading of the CA statute indicates the same thing. And it's for the same reason--best interests of the child, who will be better off without the termination of his father's parental rights if, someday, he needs some kind of support (whether CS or custodial support). However, I still encourage organicpapaya to go see an attorney to help her work through all this stuff and come up with the best scenario under her state's law.