Wills & guardianship after divorce

[janiejonstone]

I'm sure someone must have asked this question over the years but I can't find it! Currently going through a horrible divorce. ExH (previously a very loving, hands-on father) has dramatically reduced his contact time with dd7 since we separated in September. He sees her for a few hours each Saturday. He covers no school holidays, no sick days. There is no contact at all between them in-between Saturdays. I offer lots of opportunities for him to spend time with her; he is always "unfortunately busy". He doesn't ask for photos of her or updates on how she's doing. I send things proactively (e.g. a writeup of parents evening at school), and often get no response. I think I've found this far more upsetting than the divorce itself. It's heartbreaking to see my daughter feel so abandoned.

I'm in the process of drawing up a will, so it's ready as soon as the divorce is finalised. We never managed to get round to making them previously, but had regularly discussed the question of guardians for dd7 should we both die. My cousin and her family live ten minutes away and have two children 6 and 8. The three kids see each other regularly and will be attending the same secondary school. They have always been our first choice as guardians and we've discussed this with them.

I know that legally if I die, ExH will automatically become dd7's primary parent. My concern isn't whether he is a fit parent - he was for a long time, and could be again if he chooses. I'm not looking to remove parental responsibility from him. But I am worried about what happens if he says he doesn't/can't look after dd7 full time. Is it possible to nominate a guardian in that event? Has anyone done this?

Hello, not a solicitor and you should probably discuss this question with the person drawing up your will buuttt...

You certainly should state in your will who you would like to be guardian of your DC in the event both you and your XH die or become incapacitated - less likely perhaps now you are not together so car crashes etc not a likely scenario but still possible. And if you have a reasonably good relationship with him worth checking if he's updated his will since the divorce and what has he put down for the same scenario and make sure you are aligned.

But your question of what would happen if your XH is alive and capable but unwilling/unable to look after your child - that is more legally complicated, as he has parental responsibility essentially it would be up to him to make appropriate arrangements for the care of his child as any other single parent would. If he agreed and your cousins were willing to have DD live with them then that would likely be OK legally speaking, although potentially complicated in a number of ways e.g. would they apply to the court to have additional parental responsibility so they could make decisions at school, re healthcare, take DD out of the country etc or would it be an informal family arrangement. You can't 'gift' parental responsibility in a will AFAIK, particularly if the child has another living parent, the courts would still have to approve it although if unopposed and backed up by your will it would hopefully be straightforward. I think your best bet (pending what your solicitors say) is to leave a detailed letter of wishes with your will explaining to your DH what your preferences for care of your DD are and hope he will do the decent thing and follow this.

You should also think about financial arrangements and, if leaving money or property in your will and/or any kind of pension, death in service or insurance payout to your DD, who you want to have act as trustees for this while your DD is a minor - I would recommend not solely your XH even if he is the one you expect to have care of her.