Custody of my dual-national son in the event of my death: complicated...

[Devexity]

DS, 7, was born in the USA, and returned to the UK with me 5.5 years ago when his father and I separated. We have not yet divorced. My ex pays no child support and has made minimal effort to maintain contact with his son: phonecalls maybe two or three times a year. No calls at all so far in 2011, not even on DS's birthday. My inlaws fly DS out to visit every summer, and took him up to visit his father three years in a row, before deciding last year that it was pointless. So DS hasn't seen his father since 2009.

What would happen if I got hit by a bus tomorrow? Would custody of DS be automatically granted to his biological father - even though he's effectively a stranger? Would DS be made to move to the US? DS and I have lived with my DP for 4 years. Ideally, I'd like my son to stay with him - the man who is his father in every emotional, financial and practical way. Would simply getting divorced resolve the problem? Would DP have to adopt DS to gain parental rights?

Thank you in advance for any advice.

In the event of your death your partner would have to apply for a residence order. The court would then determine where the best place is for him to live. That's the court here, the country of your son's habitual residence.

No adoption necessary.

You can also apply for Parental Responsibility for your partner, but you'd have to marry him first. The idea behind this is that PR is a legal and moral comittment. He must make that to you first.

Thank you! I'll hurry up with the divorce.

Could I suggest also that you make a will as soon as you can, just to make sure your assets are passed to DS (or to DP perhaps, so he can provide for DS). I am not certain, but if you are not yet divorced, wouldn't your assets currently go directly to your ex?

That's right, if there is no will, and provided the assets are under the threshold (can't recall what it is at the moment but it's around £350k.)

Or that might be the inheritance tax threshold. Think the threshold on intestacy is quite a bit lower.

Everyone should have a will.