To wonder what would happen if I died? Lawyers/ will experts needed please

[BarbaraVineFan]

I'm a single mum to almost 5 year old DD. Her dad lives abroad, has married again and barely sees her. He has very little money, doesn't provide for her financially any more, and his new wife has bipolar disorder and isn't always rational.

I am just wondering if, as her father, he would automatically have the right to have her live with him if I died? Or would I be able to nominate an alternative guardian in my will, and if I did, would my wishes have any weight or not?

We were married when she was born and he is on the birth certificate

She would go to him. He would make all decisions as he has parental responsibility.

would be up to a court whether your wishes should be in her best interests.

So if I explicitly stated in my will that I didn't want her to go to him, would it have to go to court?

Would he want her?

He would get be offered custody. Depending on what country their in depends if ss would keep track. You could ask him to sign his parental rights over. Finance make very little difference.

He has parental responsibility and would be the first person considered for her to live with. His finances and wife’s illness aren’t in themselves reasons he shouldn’t be. Have you spoken to him about this? If he doesn’t have much interest in her or the right sort of home life to give her enough attention then he may well agree with you that an alternative guardian would be to her benefit.

He has said he would want her, yes

If he has parental responsibility your wishes don't come into it. Unless he's been abusive or similar

I think she would go to her Father. But if he lives in another country this would be taken into consideration. It would probably go to court.

Your will wouldn’t override his parental rights.

I once knew a lady in her 70s whose daughter died very young from cancer. The daughter left her two little boys to her mum in her will. Their father was still alive at the time. I don’t know how it was done but get some proper legal advice on it as it was possible for them.

It would only be possible if the father didn't want them (common), or was legally barred from having them (much less common).

You need to make a Will and appoint a testamentary guardian for your child in your will. The Will solicitor should recommend that you write a separate letter to be stored with your Will explaining why you think it is best that your child lives with the guardian appointed by you.

If the father wants to care for the child after you pass the guardian could apply for a child arrangement order of a special guardianship order and use the Will and your letter as evidence in support of their application. They would be more likely to be successful if you chose someone young enough to care for your child and someone who has a close relationship with the child.

The letter should be written factually and explaining why you are acting in your daughter's best interests - in other words don't make it too personal or slag off dad even if he deserves it.

A well written letter speaks from the heart and can be compelling in a CAO application but choose someone as guardian who would agree to contact between your child and their father - as they are more likely to succeed if they will maintain parental contact - even if it is ad hoc contact

Who would you think would fight him in court?

Children don't always go to the other parent where the parent lives abroad and doesn't have a real relationship with them, but it would go to court if the guardian you put forward was willing to. In some cases the child would be a ward of court (this happened in my extended family, but some years ago). The absent parent wasn't legally barred from contact and had no criminal convictions but had simply moved abroad and hadn't seen the child for many years, whereas the guardian had a close ongoing relationship with the child. The child was late primary age and able to express a clear wish to live with the nominated guardian.

Thank you all - this is food for thought. We don't have a bad relationship as such, just that he is very distant from her and I just don't think it would be in her best interests to live with him really, especially since he lives in the middle of nowhere in a different country where she has never been and has no other family or connections at all.

I'll consider it further. Thanks again.

A consideration will be given to what is best for your child in terms of staying in there current school, living near friends, how much time is currently spent with relative you want to take over your parental responsibilities. How much effort does ex DH make to see/support DC now?

Or not married to the mother as was no automatic PR then. My youngest is now 20 and his dad never had PR