What happens to my son if I die?

[TheLittleLion]

Long story short; I was in a relationship and got pregnant. My sons father is on his birth certificate but left us and moved 200 miles away when DS was 3 months old and hasn't seen him since or contacted us (he's now 2.5).
I had a conversation with my uncle over Christmas about how if I died my son would automatically go to live with his dad. There are many reason that this terrifies me:
Ex was emotionally and physically abusive to me (though I never went to police so no record)
-He abused alocohol and drugs
-He admitted to having auditory hallucinations and said that 'they told him to hurt people' (whether this actually happened or if he thought it would excuse his abuse, I don't know).
-When he was living with us he paid absolutely no attention to my son and spent all of our money on drink.
-He's incredibly unstable.
Is there anything I can do to stop this happening if I were to pass away? My son would be much happier living with his grandparents (my mum and dad), as he actually knows and has a great relationship with them and they would of course prefer to look after him if that were to happen.
I have no health issues or anything that makes me think my time is short but I can't stop worrying about this.

Sorry, i tried to make it short. TIA

[AuntieStella]

You need to make a will, specifying your wishes for guardianship (and adding the reasons, like continuity, familiarity etc).

Yes, as your XP has PR he could challenge that, but the clearer your wishes the more likely they will prevail. Especially as XP is a stranger to your DS.

[Racmactac]

testamentary guardianship - ie naming a guardian in a will does not come into play unless everybody with PR is dead.

you need to leave specific instructions to whoever you wish to have your child in the event of your death - they must make an immediate application to the Court - emergency application for prohibited steps order to prevent dad from removing child from that persons care and an order for a child arrangements order. Cafcass will consider all the circumstances and decide whats best for your child.

I would perhaps write out a detailed letter setting out all of the things you have said here to be used in the case of your death.

[TheLittleLion]

Okay, great. I can focus on making a will now instead of just worrying!
Thank you

[titchy]

He wouldn't automatically go to his father. Social services would make a recommendation to court if there was a dispute. Given your ex has no contact how would he know you'd died? Your parents would have to apply to court, SS would contact your ex to see if he was in agreement, if he did great, if not he'd have to prove he was able to look after him. Court will always act in the best interests of the child.

[TheLittleLion]

Oh, well that's good news. I guess I just took my uncles word for it, he's quite a bit older with a son who he doesn't see, I assumed he knew what he was talking about.
If I die does SS automatically get involved or could my parents take my son without the involvement of anyone else?

[AuntieStella]

Firstly sorry for not answering the right question earlier!

If your parents take in their newly bereaved DGS, social services are not going to remove him precipitately (unless there's something really obviously up which means they just cannot be considered suitable). Obviously he would have to move if it were decided it was in his best interests to live elsewhere long term. But he shouldn't be shunted round whilst the decisions and legalities are being worked through.

So another the important thing is that he and they know that that is where he should go in the first instance; and that they know what needs to be done to get it all properly endorsed.

[TheLittleLion]

No worries AuntieStella! You were still helpful.
So it's definitely a good idea to have a will so I can state my preferences? Would my parents have to go to court and give reasons why DS would be better off with them than ExP? I've just read something online that said that unless ExP is deemed a danger to DS my parents won't have a chance at being given guardianship?
This is all so confusing, may have to make an appointment with a solicitor to get it all explained simply to me!

[mumblechum1]

OP I'm a willwriter and this is a situation which comes up all too frequently .

My recommendation to my clients is to appoint a guardian in the will, and state that the reason for the appointment is because they consider that their child's best interests would best be served by living day to day with the guardian as they have a close and loving relationship with them but have had no contact with the father since x.

That does not of course negate PR to the father, so at the same time I advise my clients to keep a written record with their copy of the will of any and all contact and any problems. The reasons for the ex not being a good parent should be set out in that document rather than the will, which will one day be a public document and it's best not to put too much personal info in the will itself. You should ensure that the named guardian is aware of the existence and whereabouts of that letter of wishes.

In the very unlikely event that you died before your child is 18, the guardian (or another family member) would need to make an application for an order under the Children Act 1989 as amended firstly for permission to apply for an order (which would be a formality), and then for an order that your child lives with them. If the father objected the court would then order a CAFCASS report and for other evidence such as statements from all interested parties including school, extended family and possibly medical and psych reports on your ex. At the end of that process the court would make an order based on what the judge considers to be in the best interests of your child. Given what you say in your OP it seems unlikely that the dad would get day to day care but obviously that would depend on a lot of things, in particular whether at the time you died he'd repaired the relationship!

If you need any more info feel free to PM me.

[TheLittleLion]

Thank you mumblechum1, that's been really helpful. I shall start writing the document that you talked about stating why DS would be better off with GPs. Would that document need to be witnessed by somebody?
Once I've done that I will set about writing a will and pass the information on to my parents so they are somewhat knowledgable about this whole thing

[mumblechum1]

No probs! The letter just needs to be signed and dated and you should refresh it once a year or so.
Let me know if you need any help with writing the will 😊

[TheLittleLion]

Brilliant
You may be getting a PM off me in the future when I come to the will, I have absolutely no idea what it entails.
Thanks again

[mumblechum1]

no worries!