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Who will become legal guardian of DS if something happens to me??(17 Posts)
Bit of background - DS is 3.3, his dad is named on his birth certificate. Myself and DS lived with my parents till he was 18 months old, it was around this point that myself and his father split. It's been a bit on/off since then, but is off for good now.
If I should die, would custody automatically go to my ex? He sees him once every two-three weeks. I'd be happier, and I know that DS would be happier, if my parents became his legal guardians as obviously he is a lot closer to them. We spend every weekend at my parents.
Is there something legal I can complete to stop my ex getting full custody in such an event? I'm not being spiteful, I'd just hate it if DS was uprooted and had to live with someone he hardly knows as opposed to his grandparents who he loves. My ex is also a regular cocaine user, and still lives with his nan and heroin-addict brother.
You need a solicitor and a very clear will. Your son's father has rights too. Would he want custody do you think?
Yes, he would.
I'm feeling so anxious over this for no reason at all lately, I'm not ill or anything - I jut can't stop thinking about what would happen if I weren't here I know he has rights but I also know he is not a good father.
You should see a solicitor and tell them that. You need to document your wishes, your concerns and the good relationship your parents have with your son.
Then you can forget about it because you're fine and you will continue to be fine.
You can document your wishes in your will but I'm afraid there is nothing you can do that will completely guarantee that your son will not end up with your ex. If there is a dispute it will be up to the courts to decide. Their primary concern would be your son's best interests.
As Prh47bridge says, the court can always overrule an appointment of a guardian.
I'm a will writer and would normally recommend in these circumstances that you do put in a guardianship appointment notwithstanding that your ex may survive you, and say that you wish the guardians to maintain contact between your ds and his father, and briefly say that you consider that your son's best interests would be served by living day to day with his grandparents. Don't say anything in the will about your ex (this will one day be a public document), but keep a statement of the situation with your copy of the will, and review that from time to time, eg every year.
So the statement may say, for example, that your ds is, say, 6 years old, has seen his dad twice in the last 6 months and contact went well but he never asks about his dad, or that he's seen him every three weeks but problems x y and z have arisen. This document would be useful if it is necessary for the guardians to make an application for a child arrangements order, so it's important to keep updating it.
If there was a dispute, the court would order a Cafcass officer to investigate, to meet with all relevant parties, inc the school, extended family etc, and to file a report making a recommendation about who is best placed to care for your son. The fact that you've made a guardianship appointment, backed up by a statement, does not mean that the court would be bound by that, but it would take it into account alongside the Cafcass officer's report. The statement would give pointers to your guardians about any issues which should be raised in the court proceedings.
Realistically, there's far more chance of something happening to your ex than to you!
Your son's father. No ifs or buts about it.
Simply not true. The courts decide what is in the child's best interests. They do not automatically favour the father.
Thank you so much for your input everyone.
Yes he is my son's father but honestly, you wouldn't know it. Whenever DS sees him he calls him grandad or by my sister's boyfriends name which winds ex up but how is DS to know what he should call him? I do correct him every time he does it.
Prh47bridge* - thank you. Thank you so, so much for such an informative and detailed answer. I feel much better about it now! And I shall definitely be following your advice.
I know you think he would want custody but if it came to it, he might find the reality very different. After all, he would be bringing up your child alone, so no weekends or evenings to do his own thing, and without any maintenance payments etc. After going from only seeing your child once every two to three weeks to being completely responsible 24/7 might not be something he is prepared to take on.
I'm in the US so it may not apply, but a friend in similar circumstances was advised to name a legal guardian for residence and detail why her son would be better off living with them and also to place all her assets in a trust and specifically name a trustee other than the child's father and to have that specific trustee for insurance policy payouts. In her situation her ex would only have wanted full custody of their son in order to control any money he may have received after her death. I was named as her son's legal guardian as we were all very close and I had children of a similar age, and her brother was named as the trustee for financial matters and insurance policies. Luckily, it was never needed.
Thank you so, so much for such an informative and detailed answer
I suspect you meant to thank mumblechum0 rather than me. She gave the really detailed advice.
Whoops, you're right bridge. But thank you for your reply too!
If there's no history of abuse or neglect, the child will automatically go to parent.
I'm not making this up. Told by my solicitor.
I'm not making things up either. It really is not automatic, whatever your solicitor said. Your solicitor was either simplifying or giving advice relevant to your situation.
Often, particularly if contact with the surviving parent is limited or non-existent, the grandparents will take the child in when the parent with care dies. If they are unwilling to hand the child over to the surviving parent he or she has to take action in the courts to try and gain residence. The courts decide based on the child's best interests.
The courts generally favour giving residence to the surviving parent but it is not automatic. If, for example, the child has been living with the grandparents for some time the courts may feel it is in their best interests to stay there. Similarly if dealing with an older child who does not wish to live with the surviving parent the courts will go with their wishes provided they are able to understand the consequences. These are not the only situations in which the child will not go to the surviving parent even though there is no history of abuse or neglect.
I agree with Prh47Bridge as usual. There are lots of cases where it would be inappropriate/traumatic to move a recently bereaved child across the country to live with a parent who has never had anything to do with them.
That's what courts are for, to look at individual circumstances and decide what is best for a particular child.
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