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Would my ex partner get my son if I died?

(22 Posts)
Hmsxoxxx Fri 09-Mar-18 09:52:44

Sorry wasn’t sure where to put this..
I’ve recently been looking into doing my will and am starting to worry. I have been with my current partner for 5 years and have a 12 month old with him. My son is 6 and see’s his biological dad twice a month. It has just occurred to me that as his father is on the birth certificate he would automatically go to him. Is there any way that this could be overridden? The thought of him being taken away from his sister, home and moving to a different town/school to be with his dad who he doesn’t see anywhere near as much as my partner makes me feel sick!
Thanks.

OP’s posts: |
AppleAndBlackberry Fri 09-Mar-18 09:58:47

I don't think there's anything you can do unless your current partner adopted him and even then a court might decide he should live with his biological father. If his Dad is open to sharing custody and DP is willing then there might be a way forward.

MyFavouriteChameleon Fri 09-Mar-18 09:58:57

I think you may want to put this in legal, as you'll get loads of opinions here, but they will be just that, not expert advice on the law!

My impression is that you're probably correct, unless his DF is very clearly unsuitable or incapable - but only an impression.

Can you ask whoever is preparing your will?

ThisLittleKitty Fri 09-Mar-18 10:04:43

I think he should go to his dad tbh but as pp said that's my opinion. Legally I would imagine your partner would need to adopt him for him to stay with your partner but I highly doubt your ex would agree.

Ginza Fri 09-Mar-18 10:07:35

Get legal advice. You can certainly specify your wishes in a will or an official Letter of Wishes (DH and I have done this in case we both cark it - we don't want the DCs going to my batshit SIL). But I don't know how much legal weight it carries compared with biological parenthood or PR or anything like that.

A solicitor should be able to help you on that, and on how to beef it up a bit if possible.

OutyMcOutface Fri 09-Mar-18 10:09:56

So you should go see a lawyer. In an ideal world your partner would adopt him and your ex would relinquish parental rights. This is unlikely to happen though. As a parent you are able to leave instructions re childcare and nominate a guardian but given that your ex would still be alive there may be a resulting court battle if he wanted to take your son. I would talk to your partner about adopting him ASAP and you may also want to talk to your ex-if he only sees him twice a month he probably wouldn’t want him anyway and it would put your mind at ease.

BertieBotts Fri 09-Mar-18 10:13:54

Yes that is what would happen. His father would get immediate custody as the surviving parent with responsibility, and it would be up to him to say no, I can't or no, I think he'd be better with his stepdad (though it sounds like you are not married - you might want to get married, as that would at least give him the status of stepfather.) It might be that other kinship carers (blood relatives) would be sought before your partner considering that legally he bears no relation to your son at all.

If you're amicable with your ex perhaps it would be worth having a meeting the three of you with a mediator and discussing what would happen in the unlikely event of your death.

Whether he's amicable or not it might be worth looking at getting parental responsibility added for your partner in court. This is fairly standard when a new partner plays a large role in childcare but is often accepted by the ex because it does not remove any legal status from the birth father. Adoption would be highly discouraged as your son has a relationship with his father, so it wouldn't be at all appropriate. The three of you sharing parental responsibility would make most sense. That does mean that the three of you would all get input into questions such as schooling or medical treatment, but it also means that if you died, it would be between a court, both men and your son (if he was old enough) to decide where would be the best place for him to live, which seems fairest. The court would then of course take the history and relationship with his sibling into account, whereas currently those things would not be considered due to your partner being an unlikely option in the first place.

MyDcAreMarvel Fri 09-Mar-18 10:15:15

Does your current partner have pr if not apply for that asap.

Appuskidu Fri 09-Mar-18 10:16:37

Yes. It’s not just your ex partner-it’s his dad.

BertieBotts Fri 09-Mar-18 10:17:31

I'm not sure why others are mentioning adoption as this would really not be advised in your situation so it's unlikely it would be approved. Stepparent adoption is extremely rare in the UK and usually happens only when the birth parent is dead, uncontactable, or shown to be a grave risk and their family is estranged.

MandrakeLake Fri 09-Mar-18 10:20:47

Twice a month sounds like the standard every other weekend? Yes your son would go to his father and he could contest your partner applying for PR. Would your partner want PR? If you split with him he would still have responsibility for your son. It's not a simply thing.

The easiest was forward is to sit down and agree what would happen with your son's father. He may be perfectly happy to leave things as they are in the event of your death. But be careful here, what if your partner remarried a woman who detested your son? I would want your son's father to still have a voice in what happens to his son.

TheOrigRightsofwomen Fri 09-Mar-18 10:31:08

Can you explain your situation a bit more?
Why does your son only see his father twice a month? Do you have a court order?

I have to admit the fact your subject refers to your "ex partner" and "my son" rather than "the father of our son" indicates your mind is thinking of YOU rather than your son.

NorthernSpirit Fri 09-Mar-18 10:33:07

I have seen this scenario play out.

Mum and dad divorced with 2 kids. Mum remarries and has another baby. Unfortunately mum then dies. The 2 children went to live with their dad.

Are you looking at this through your wants, rather than your sons? Why wouldn’t he live with his own father if you were to die? The boy should like with his dad.

Branleuse Fri 09-Mar-18 10:34:05

yes, your son would go to his father barring good reason that his father was not capable.
Id hope that both men would create a situation where the children could maintain a relationship.

Its not likely to be an issue though is it. Youre just feeling mortality because youre doing your will. I would try not to worry about this.

watahub Fri 09-Mar-18 10:38:40

Message deleted by MNHQ. Here's a link to our Talk Guidelines.

Hmsxoxxx Fri 09-Mar-18 10:59:57

Seeing him twice a month is his own choice.
Not sure why you would think I’m thinking of my self (considering I would be dead) when I specifically stated that the worry is that he would not be happy being taken from his 5 year home, his sister, his school, his friends, moved to a different town to live with his dad who picks him up at 6pm in the evening and drops him back at 12pm the next day compared to my partner who he sees on a daily basis. I know he would hate this due to him telling me himself. I will look into the step parent parental thanks all!

OP’s posts: |
NGC2017 Fri 09-Mar-18 12:11:54

Hi

This was the upset I faced when I did my will in January. I wanted to specify guardians to my son as his dad hasn't been in his life for well over 2 years now. Sadly I was told as he has PR he would automatically get custody, but of course he would need to 'come for' my son. I was devastated and sought legal advice and was told without a residency order this would be the case, but was advised against the residency order as his dad hasn't bothered in years so it doesnt make sense to do one. Its still utterly devastating that I man who is absent from my childs like by his own choice would get responsibility of him should the worst happen, just because his on the BC!
I do agree above though. My anxiety went through the roof. I was obsessed with the fear of dying because of leaving my son. Now my will is done I dont feel the worry as much any more. Dont get me wrong I worry as any mom does, but the process of making a will made me really upset when I found out what I did x

Kingsclerelass Fri 09-Mar-18 13:29:03

My ex will have parental rights if I die, but that supposes he would want them. Having a dc for a weekend is completely different from having to reorganise your life and care for him every waking hour of every day. Although my ex says otherwise, I know his enthusiasm would last about a week before he couldn't cope.

So I've had my solicitor add a clause to my will that says "assuming my ex is unwilling or unable to provide a home for my ds, guardianship is passed to XXXX my sister."

It's the best I can do.

MyFavouriteChameleon Fri 09-Mar-18 14:14:19

"assuming my ex is unwilling or unable to provide a home for my ds, guardianship is passed to XXXX my sister."
That seems a very odd phrase for a legal document (assuming something is not usual in that context without providing any reasoning..).

I'd encourage you to check with a different solicitor (or on the legal section on here), that your will would be considered valid with such a phrase in it.
I know you'd think a solicitor wouldn't write something incorrect, but I know someone who got a will done 5 years after divorce, and instead of leaving his possessions to his DD, the solicitor wrote it to leave everything to his ex wife!

Kingsclerelass Fri 09-Mar-18 14:34:54

I can't remember the exact wording, but it is to that effect. But I'll check.

Doctordonowt Fri 09-Mar-18 14:45:12

I would speak to a solicitor about joint Guardianship. If possible, speak to your ex about your fears and work out what will be the best for your child. If the Father and step father agree to joint guardianship this would be a flexible arrangement. What would be best for your son now, may not be best if you die when he is in his teens. With the joint guardianship, either guardian can apply to the Court if things cannot be arranged amicably. Even at your sons young age the Court will appoint an officer to listen to his views. I think you are being very sensible to think about this now.

Starlight2345 Sat 10-Mar-18 11:35:19

How old is your child ?
My ex has no contact and was an unfit father . My will has a statement of where I would want my Ds to live in the event of my death and a separate letter attached explaining why my ex should not have son .
As my ex does have pr I can’t legally just say he can’t go to him and there are safeguarding issues in my case .

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