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Could my ex take my daughter if I die?

(26 Posts)
Didi6 Sat 23-Jan-10 22:46:44

I think I probably know the answer to this as I have done some internet research, but am hoping for some reassurance. In the process of drawing up a Will I think i've found out that as my 3 year old daughter's Dad is on the birth certificate he gets automatic guardianship, even if I appoint my sister (who has been involved in my daughter's upbringing from day 1). I'm so worried about this, as his lifetsyle is unconventional and unsuitable for a small child. He does love her, but sees her sporadically, has no job, no fixed abode (staying with friends in France), has a bad temper, still likes to party hard etc.
Whereas I have created a stable and happy environment through sheer hard work and the support of friends and family. My daughter is so happy and secure and I KNOW IT WOULD DESTROY HER if she was taken away from all she knows and loves.
Does anyone know anyway I can make sure my sister would get Guardianship? Would applying for a residence order help? I want to do this, but know it will get his back up and make him more determined to stop me doing this because of his ego.

Mongolia Sun 24-Jan-10 01:18:10

Where you married? does he has parental responsibility?

Didi6 Sun 24-Jan-10 08:45:10

Yes, because he is on the birth register. But he does not fulfill his duties of PR.

StewieGriffinsMom Sun 24-Jan-10 08:49:59

Message withdrawn

kdk Sun 24-Jan-10 11:32:22

Can't help but am watching this with interest as am in vaguely similar situation with regard to my dts and my xh.

I would hope that the powers-that-be would take the interests and well-being of the child into account before the interests of a father's PR - particularly if child and father have not really had a relationship prior to the mother's death.

Mongolia Sun 24-Jan-10 12:32:34

First, unless you are working in a high risk job you don't have to wirry so much about dieing as it is far more likely that your DD will outlive you.

Second, parental responsibility is not about maintenanance, contact, etc. It is about having a say on the life of the child simply because they are the parents of that child. If he is in the birth certificate he has it. And things would have to be very bad for him to loose it (like being a serious and proven danger to your DD -more like he may kill her, than may make her sad by stopping contact with other relatives).

I suppose that things may be different if there has been no involvement whatsoever of the parent in the life of the child (like child being conceived during a one night stand). But still it is a bit difficult to know which side the courts would take.

A residence order only specifies who the child lives with and contact arrangements, it would be useful to have it, but I don't think it would prevent your DD's dad from getting her in the even of your death.

You can book an appointment with a family lawyer to discuss this, normally the first appointment (1/2 hour) is free. So plenty of time for you to get an explanation of where you stand and about residence orders without the need to invest much money.

marsden14 Sun 24-Jan-10 20:12:00

The simple answer is......if you have made a will stating who you would like your child to go to, should anything happen to you, then there is no way your ex husband/partner can apply for custody. This is fact, as Ive done the same.

Mongolia Sun 24-Jan-10 20:23:46

I believe that will would be very contestable at court. I doubt a will can over rule parental responsibility.

wannaBe Sun 24-Jan-10 20:23:46

marsden14 I'm afraid you are wrong. You can appoint a guardian in your will but it is not legally binding. ultimately the courts would have a final say in who the child goes to if the guardianship were contested, and if the child had a surviving parent then the child would almost certainly go to that parent unless he were proven to be unfit.

marsden14 Sun 24-Jan-10 20:33:33

Well my solicitor must be wrong then, although I doubt it very much. I have written proof that my daughter will go to and stay with who I chose, even if it is contested.

Mongolia Sun 24-Jan-10 20:39:12

I would get another solicitor to give you a second opinion, unless he doesn't have parental responsibility.

I am tempted to say that your solicitor has given you a false sense of security. You can decide who your belongings go to, but it doesn't work the same with kids (unless father doesn't have parental responsibility or is unfit to do the work).

wannaBe Sun 24-Jan-10 20:40:14

but marsden as just one parent you do not have the only say in your daughter's future.

And sorry to say this, but once you are dead you will have no say in your daughter's future as her father (assuming he has pr) will be the parent and will have a legal say in her future.

Mongolia Sun 24-Jan-10 20:45:10

"I have written proof that my daughter will go to and stay with who I chose, even if it is contested."

I would go as far as saying that you can only have written proof if you are dead, the will had been contested and the court has taken a decision in favour of the person selected by you. But before then... I don't think so...

marsden14 Sun 24-Jan-10 20:45:22

My ex husband has no parental responsibility. And I am sure I dont need a second opinion. This has happened to me, and my solicitor, and the courts have already agreed to my will. And even if hen I am dead, he tries to get custody, my family will rule over him, as are in a far more beneficial position than he is, money wise, responsibility wise etc.

Mongolia Sun 24-Jan-10 20:47:09

Then is a completely different case MArsden, the op's DD's father HAS parental responsibility. You need more than a will to over rule that.

Didi6 Sun 24-Jan-10 20:49:34

HI there

I think I am getting closer to the bottom of it but will double check all this with a family law specialist this week hopefully.

The father would have a legal right, but the appointed guardian has PR too and rights. So they can apply to the courts to make their guardianship happen over the surviving parent, and then I guess the judge decides what's in the best interest of the child. What concerns me most is where the child is during this period of unknown.

marsden - I would be so interested to ind out on what basis your solictor has assured this. Does your ex have PR?

I will let you all know what the solicitor says.

paisleyleaf Sun 24-Jan-10 20:50:06

I don't know how old your daughter is.
If you weren't married he doesn't have parental responsibility just by having his name on the birth certificate if it was before 31st Dec 2003.

Didi6 Sun 24-Jan-10 20:53:19

Sorry Marsden just read that your ex doesn't have PR - that's def why you can know 100%. Great news for your peace of mind. Sooo wish I hadn't let his name go on the BC...

gkf Sun 24-Jan-10 20:54:45

Hi, I have been through it and I'm afraid its not as simple as marsden14 says.

I had a lawyer advise and draw up a will, which says I want to my sister to bring up my daughter and not ex. It gives reason, ie that ex not emotionally, financially responsible etc. However, this does not override ex's parental right and it would only be a consideration...

If it came down to it, would your ex actually want custody?

Didi6 Sun 24-Jan-10 22:01:44

I didn't think he would have wanted it judging by his lifestyle and absences from her life. But I mentioned the idea of my sister looking after immy in the event of my death he flipped - never seen him so angry. But I really feel it's just a kind of selfish possessivenss and ego thing. He can see how happy she is and has often said it's ok that he's not around as I have my sister. She doesn't even want to speak to him on the phone (I do encourage it, because I want her to know and love her father - I just know he's not capable of looking after her properly) and barely knows him.
anyway, I guess I'll just have to make my wishes known and leave it to the common sense of all involved and hope that the right thing for my DD would happen.

My instinct is that a residency order would make him emotional and therefore fight for his rights out of principle rather than sense.

Just wish I had looked into all this more when I was pregnant

kdk Sun 24-Jan-10 22:15:33

Also, sorry for sticking my oar in, but I think if you and your partner have been married, the father automatically has PR. That is the reason I am concerned as my kids' dad has had, and is unlikely to have, much contact in the last two years and foreseeable future BUT he does have PR as we were married and he is on their birth certificates. I have stated in my will that I would like my mother and brother to have guardianship/custody should I die but my solicitor told me that while the court would take my wishes into consideration, they would also take the children's welfare AND the rights of the parent into account in making their decision.

imamissandamummy Sun 24-Jan-10 22:36:28

hi, didi. will be watching this thread to see what your outcome is... but sorry dont have any advice or knowledge re: guardianship.

however, i spent months tying myself in knots after putting ex on bc when my child was born even tho we weren't together... i wished i hadnt done it soooo much, but when i blubbed this out during a meeting with solicitor, i was told that the courts would have granted it anyway at the first sniff of trouble from ex. the way she put it was -just remember, he's only had it from birth instead of getting it now, so dont be angry for doing it, as it really wouldn't have made much difference if id registered child alone. ie: if u did die and the case of guardianship went to court, and your ex wasnt registered on bc... if he asked for it to be granted (and he wasnt a danger to her), then it would be granted without a doubt. i know its not a help, but it stopped me beating myself up about it.

next train of thought was 'wish id never told him i was pregnant, and just moved away' lol.

cestlavielife Mon 25-Jan-10 10:14:39

i'v enamed other guardians and expresly mentioned my ex's mental health isseus - i am sure if he came to it he woud contest but i would hope that court CAFCASS etc would take the childrens views into accoutn. that is as much as you can do.

all you can do is expressly make your sister legal guardian on your death. if he then wishes to contest he has a right to - but hopefully the immediate situation is she goes to your sister.

yerblurt Thu 28-Jan-10 22:46:53

If the father has PR then the child would normally live with their parent in the event of the other parents death.

Of course each case is different and depends on the child arrangements up until that event.

If dad has PR then he is an equal legal parent to you, he has every right and responsibility as a parent with PR for the child to live with his/her biological father.

You could state a guardian in your will, however, if dad was to make an application for residence then he would be in a fairly strong position to argue for residency I would think. At the end of the day it can of course be pot luck (depending on court etc) and the extent of involvement of dad in the child's life and contact etc etc

yerblurt Thu 28-Jan-10 22:49:16

Didi6 - any appointed guardian does NOT automatically have PR.

Anyone without PR would have to make an application and would rarely be given it if there was a surviving biological parent.

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