Appointing my partner as legal guardian

[user1499419331]

Hi, I was hoping to appoint my partner as my daughter's guardian if I died.

Her father has no contact, as he stopped turning up to court, and he attacked me, so CAFCASS did not endorse contact. But I think legally he has PR.

I'm going to speak to a solicitor but wanted to know as much as possible beforehand.

Do you think I'd need my ex's permission for this?

My daughter knows my partner now as her dad, and I'd want them to stay together if anything happened to me.

[Mumblechum0]

Hi OP, I’m a will writer and this is a very common issue. If your ex DP has parental responsibility, the default is that your DD would live with him. Appointing a guardian in your will doesn’t negate that presumption. However it gives a clear message about what you’d like to happen if you passed away before your DD.

If that happened, and the ex tried to remove your DD, your husband would need to make an application for a Child Arrangements Order.

The court would make a decision based on a checklist, and one of the factors (and if she was over 10, the most important one), would be her wishes and feelings so if she made it clear that she wanted to stay with her stepdad, it’s likely that’s what the court would order.

The court also has to weigh up factors inc her physical, educational. Emotional and physical needs.

When I write wills in these circs, I include a few words explaining why the client is appointing a guardian, but the will is one day going to be a public document so I recommend that a letter explaining the reasons for the appointment is kept with the will, and updated as necessary.

[iammarleysmummy]

Thank you for this.

Does the fact my partner attacked me and that Cafcass were not going to endorse contact matter?

[Sistersofmercy101]

Hi OP. I'm not a legal anything but just a person in similar circumstances. ..Have you considered applying to your local court for your current partner (who has/is acting as your DD's 'parent') to have (be granted PR) of your DD? This wouldn't remove any PR from anyone but would add legal status for your partner and DD relationship. They WOULD consider the actions of EX as they're a matter of court records and would act in what they consider your DD best interest especially considering your DD and partners parent /child relationship?

[iammarleysmummy]

Hi Sisterofmercy. I thought this would trigger contact with my ex, and I don't want to poke the hornet's nest as it were.

[Sistersofmercy101]

Yes, I understand that fear. :( best of luck OP.

[Mumblechum0]

Hello again. The attack, and Cafcass recommendations would be considered relevant so certainly mention that in the letter of wishes and keep a copy of the Cafcass report with it too.

Then when your DD is 18, you can destroy the letter of wishes etc without having made public any of the background info.

Just as an aside, your current partner can't be granted PR unless you're married.

[MrsBertBibby]

If your ex DP has parental responsibility, the default is that your DD would live with him

I am a family solicitor and this is categorically not true.

Especially in circumstances where contact was denied due to his violence.

If you do not have a residence or "live with" order, then if you die your partner can apply to the court for an order that the child live with him, which would give him PR. If there's no actual likelihood of your dying, and you don't want to poke the bear then that might be the best plan.

[Mumblechum0]

Mrs BB, technically that's right, I should have worded it that appointment of a guardian doesn't override the other parent's PR (CA Part 1 Section 5), so to clarify OP, your dd wouldn't necessarily be taken to live with her father if he didn't want her, but in the event of a dispute, the court would be applied to to make a decision as to who she should live with.

[MrsBertBibby]

And that decision, like any other, would be made in the best interest of the child, with no presumption about "blood".

[Mumblechum0]

Yes we’re on the same page Mrs BB