To prefer my DS to stay with my DP (and not go to my mum) if I die?

[vulvic]

*touch wood I won't, of course

I am constantly troubled by not knowing what would happen to my little boy if I died (especially because I have bad health anxiety).

I have two children.
DS (oldest) isn't involved with his dad. He's a preschooler.

I have a new baby with DP now too.
He's amazing, he's always had an amazing relationship with my DS and stepped up massively despite nothing being expected of him at the time, and he's now an amazing dad to DD.

Anyway, I plan to make a will (just incase).
I haven't known whether to opt for my mum or my DP as legal guardian, but now considering we have our family home and DP and I have a little girl (who my DS adores), I'd be leaning towards designating my DP as guardian if I died.

Anyway, I told my mum I was making a will and not being sure what to do.
She said I'd 'clearly be signing the babies over to her'.
I explained that I really wouldn't given my DP is an amazing dad to my little girl so she'd clearly be staying with him anyway, and explained that I'd probably rather my two babies not get separated and my DS not be ripped from the stability of his home.

She said I'd be stupid to put my 'boyfriend' down and not her and then went really off with me and ended the conversation.

I've always considered DM an option but the reality is, she openly says about how she 'can't deal' with more than 24 hours of having my DS.

Anyway, this all seems really petty given that it's hypothetical but is also a really real problem so I'm just seeking other opinions for such a massive decision!

He will go to his Dad, unless his Dad agrees for your dp to adopt him.
Your dp can't adopt him without the other parents consent, if the other parent is on the bc.
It doesn't matter what your will says if the absent parent has PR.
it happened to my cousin, father came back and his step kids had to go. he'd just lost his wife, then the kids he'd grown to love as his own.

@Devlesko he has no PR and isn't on the BC

That's definitely in your favour then.
You need to get legal advice and I hope your dp can adopt, not that you'll be going anywhere soon, I hope.

@SpringSpringTime nowhere near old! people have their first babies older than she is!

OP, your DP can adopt your DS, that would be a solution, then your DP would automatically have both DC if anything happens to you.

Getting married would help the adoption process, and you needn't waste a lot of money in just getting married.

And don't bother telling your DM what you plan to do. Let it drop, and just get on with things.

Anyway, this all seems really petty given that it's hypothetical but is also a really real problem so I'm just seeking other opinions for such a massive decision!

It's not hypothetical these days and we have recently had the same family discussion regarding the possible future guardianship and financial arrangements for our DGC if both their parents died. Both parents are doctors on the covid frontline. Their children are primary age. Four loving grandparents not appropriate as GC guardians, due to age and medical factors.

The most suitable and willing guardians are an uncle and his wife, secure marriage, home, incomes, great with kids, but have none of their own. They have agreed to be care guardians and manage the childrens trust fund.

All arrangements, trust, wills etc advised and drawn up by lawyer, very recently.

Don't discuss it with your mother. Make a will - use a solicitor or good will writer (eg Marlow Wills, a mumsnetter!) and also write a letter of wishes to go with it, explaining why you would like your partner to be your son's guardian.

However, you absolutely must marry your partner. Your wish to have him in your sons life permanently will be taken much more seriously if he is your husband and not your "boyfriend". If you wanted, the two of you could then make a "Parental Responsibility Agreement" which gives him parental responsibility.

You don't need to arrange an adoption if you don't want to, you can give PR to your DP through the local court process. This is made easier as you are your son's only legal parent. We are a same-sex couple with a child born before the legislative change to allow us both on the birth certificate & went down this route to give PR to his other mother (as I would have had to rescind my PR over him in order for us to adopt him together & we didn't want to do that.) It's very straightforward & simple.

I know a little boy whose mum passed away when he was a baby, his dad met someone else who adopted him and they also had another baby together. Then the dad passed away too. The little boy is still with his adopted mum thank goodness. I would look at adoption in your position.

Your DP doesn't have to adopt you son. Why doesn't he just apply for PR for him?

Just to add, you don't need to be married to adopt a step child - family of mine have a situation where the oldest child is an adopted step child but they're not married. They do have other children together, whether or not this makes a difference I don't know. In my family's case I believe permission was sought of the birth parent but there wasn't much difficulty there.

Do you even know where your DS's biological father is? It would make sense that you've lost track of him and the court would be putting you at possible risk if they tracked him down to get permission! If he's had nothing to do with your DS and isn't on the birth cert of in possession of PR, it may not be necessary to get his permission but you'd need to speak to a solicitor about that.

Aside of all that, definitely a good idea to keep the kids together. If anything were to happen to you (god forbid) it would break your DS if he also lost his daddy and his sister in the same period. Your mum is wrong.

I would marry your Dp and go through the adoption process. Get legal advice.

Even if you get PR for your Dp, if you die then surely the bio Dad can also then apply for PR as he is the biological father. Don't ever underestimate bio fathers. However you feel about him he was obviously fine to let you raise his child without him, he may feel differently about your Dp raising his child.

I watched a step Dad lose the 3 children he raised as his own after his wife died from cancer. Yes it was slightly different in that the bio Dad was on the birth certificate of all 3 children but he went from a EOW can't be arsed palm them off onto any family member who would have them to taking all 3 full time. We assume it was for the benefits he could now claim. He was certainly fast transferring the child benefit over to himself.

Get legal advice.

If you marry, your DH can apply for Step-Parental Responsibility. This is what I was advised to do for my child when I was making my Will.

We just had to sign the form together at a courthouse, which was then approved and sealed by the High Court. A FAR simpler process than adoption, and would achieve what you desire.

My child's father is deceased and I wanted to ensure that my husband would retain custody. It was the late father's family that I feared attempting a custody battle, so I also named my own siblings as Guardians should my husband and I both die.

I would strongly advise you to marry your partner and apply for parental responsibility.

This fact sheet that I’ve found from a quick google gives useful information about PR orders for step-parents:

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I've just replied on another thread where someone is asking whether her DP of five years could adopt her child in case she dies. My response was 'way too soon'.

BUT your situation is completely different. You already share a child with your DP, and have the uncomfortable added factor that if anything DID happen to you, it looks as if your mum would start flexing her muscles around rights to your kids. I would be worried at her response that you'd 'sign the babies over to her' - wtf? Her attitude to your DP is clearly an issue, and so yes, if anything should happen to you he could end up in a bit of a mess regarding custody of your eldest, because she might make it very difficult... only paving the way for your ex to step in. And yes, as the bio dad, it's actually quite likely that he would get custody if he went to court versus your DP.

Get married - pronto.

Then look into adoption.

I would opt for your boyfriend having parental rights, guardianship or adopting your son. If things were to change after your death your BF could pass on guardianship to your mother if needed. Your mother could die when your son is still small and there would still be a question of who would have custody. It would leave your son going to his bio dad rather than your BF, as although he is not on the birth certificate they could do a DNA test to determine who's son he is. If your mother has custody after your death and decides at some stage that she doesn't like your BF or a possible new partner of his, she could stop all contact with him and his sister.

Could you phrase it as she would be the second guardian and how important a job that is. I wouldn't be too sure your other child's father would just let his child go to someone else on your death especially if he thinks there could be money involved or as a further way to exert control. Get advice about this now.

It is worrying that my sons bio dad could play a part despite not being on the BC considering how awful of a person he is (no guilt in saying it).

Also, my mum isn't old (she's only nearly 40!) so there's no worry about age.

I agree with PP, for DP to adopt DS
Also, you’ve said multiple times your wishes would be respected. Don’t be so sure of that. Even in the best families, if a person dies without a will there is always someone who will say “that’s not what the deceased told me”
The conversation with your DM was contentious. I would not put it past her to say that your wishes were for her to have your babies if you died. If you don’t have your wishes written in a will, relatives will disagree as to what your wishes are.

Have you had this conversation with your DP?

My sister assumes she'd have our children if we both die. We intend (haven't for various reasons*) to make a will stating this is NOT what we want. I have no intention of discussing it with my sister. If I die and she's unhappy with me, so be it - I won't be here to live with it. And in the meantime, there's no reason for it to create tension.

*we want dc to go to a friend. There have been initial casual conversations between us and said friend but it is a very emotive and difficult topic to address properly and we keep putting it off which is clearly very stupid

It's not only custody you need to worry about, it's finances. Your partner won't qualify for bereavement benefit, for example, and the taxation of any assets might come into play. Unless you have a very good will, the best thing to do would be to get married.

If it's at all comforting, I'm assuming you're quite young as your mother is in her late 30s. While it's responsible of you to be writing a will, you also haven't left this until too late, which is good.

Your partner won't qualify for bereavement benefit

This is a really good point. Currently that is £5000 lump sum and then £350 a month for 18 months. It’s not means tested and doesn’t impact most other benefits

Whilst not remotely as generous as it used to be it’s something that should be considered when thinking about financials in the worst case scenario

It’s not silly at all, btw, to sort this out now-the worst case scenario can happen and you just have to think, how would it feel to lose my partner and immediately have a huge mess (financial and family) to sort out? I’d want that bereavement to be the worst thing, not pile pain on top of it that could have been planned for.

We chose my sister despite other suitable options. She lives nearest to us, has a similar lifestyle, and is a mum to an only herself. We’ve also made sure there will be enough money to look after dc (from life insurance) on top of what they will inherit (from sale of house). Yes it’s unlikely that we’d both go together leaving them behind but if it did, I want everything else about their lives to be ok.