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Custody of Children in Event of my death?

(10 Posts)
PhantomMenace Sat 15-Mar-14 09:38:23

I am due to go through a very risky C-section in two weeks and the chances of things going wrong are very high. I have been wondering what would happen to my children if I was to die.

I am married and have been with my husband for 5 years now, we have a child together and one on the way. I also have two older children from a previous relationship, they are 11 and 9.

My ex is an alcoholic and addicted to drugs, he has had a child to another woman which was taken into care due to violence and social services consider him a danger to children. However he see's my children for 2 hours a fortnight at a contact center.

I have residency of my children, my husband treats the children as his own. DH is more than willing and able to take the children if anything were to happen to me, my question is how likely would it be for the courts to allow this?. Is it going to be a long drawn out fight?, would my ex even have a chance of getting my children?.

90sthrowback Sat 15-Mar-14 09:41:05

I would say you need to get proper legal advice and quick.

If your ex did not object your DH could probably adopt but this is a long drawn out process.

PhantomMenace Sat 15-Mar-14 10:04:12

I know my ex would never agree to my DH adopting the kids unless there was some benefit to him. I agree I need proper legal advice but we are struggling for money at the moment and time is very against us now.

evelynj Sat 15-Mar-14 10:18:53

Don't know about legal side of it but agree about seeking advice & write down what you want. Also, good luck with the c section & hope all goes well x

Floralnomad Sat 15-Mar-14 10:26:45

Perhaps the CAB could help you get something formal on paper . If not speak to your social worker ,which I assume you have if your ex has to see the children at a contact centre and see what they can suggest .

Floralnomad Sat 15-Mar-14 10:27:38

Sorry very rudely forgot to wish you luck with your impending birth ,hope it all goes well .

PhantomMenace Sat 15-Mar-14 11:51:42

I don't have a social worker, the child that was taken into care had nothing to do with me and they wouldn't let me know anything either. It's only because the contact case about my DC's is going through court that I even found any of this out.
Thank you for all your help, I know im just panicking and everything will probably be fine, I think I shall get in touch with citizens advice and make a will just incase.

Nappaholic Sat 15-Mar-14 22:27:10

Make a will appointing yr husband as the guardian of your older children, even though he is also their stepfather. He would be able to apply to the court for a residence order if you died, and the court would consider what would be in yr children's best interests....so probably not yr ex! Do you know if he has PR for them?

monkeymadness1 Sun 16-Mar-14 14:02:18

You say your ex wouldn't agree to your DH adopting the kids unless there was benefit to him? If your DH officially adopts the kids then your ex will no longer have PR, your DH would and ex would no longer been liable to pay Child Maintenance for them. He's an alcoholic, had his other child removed from him and only sees them 2 hrs a fortnight in a contact centre- can't see they will lose out. Would he accept your proposal if it meant he didn't have to pay any more maintenance?

mumblechum1 Sun 16-Mar-14 19:20:17

OP, in the short term I suggest that you make a will appointing your husband guardian of your eldest two. I write this type of will frequently and generally I insert a few words along these lines:

"I appoint as guardian of my children A and B my husband x, notwithstanding that their natural father y may survive me. The reason for the appointment is that I consider that the children's welfare would best be served by their continuing to reside with x, with whom they have a close and loving bond".

The appointment is not binding on a court, so if there was an argument about who the children would live with, either your dh or your ex would need to file an application for a residence order and the court would have to consider all the circumstances and in particular a CAFCASS officer's recommendation to reach a conclusion.

I usually also recommend that my clients write an explanation of the background to the appointment of the guardian, and keep it updated. The reason that I don't recommend putting any significant detail into the will is that doing so would potentially be upsetting for the children to read when the will becomes a public record. Far better to destroy the letter when both children are over 18.

In the long term, you, your husband and your ex can make a Parental Responsiblility Agreement. This is a very straighforward, simple and free way of giving your husband PR. The crucial thing is that your ex may well be prepared to make a PRA, as it does not remove his own rights and responsibilities, but means that 3 people, not 2, have PR.

Finally, wishing you all the very best with the birth.

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