Would my son have to live with his father if something happened to me?

[Cookiecake]

So I am a lone parent and have been thinking about this a lot recently. Me and my ex broke up last year after a long term relationship that was quite up and down. My sons father has never been that hands on and has left me to do everything pretty much since he was born (he lived with me and parents when my son was first born until he was around 8 months).

My son is extremely close to my brothers, one of which is only a little younger than me and we live together therefore my son is like close family to them. I just wondered what would happen if something happened to me. Would my son automatically have to go to his dad ( he is on birth certificate) when I am sure that staying at his school in the area he knows with the people he knows would be best for him.

Is there anything I should do about this now such as writing a will to include that I'd prefer my sons legal guardians on em my brother? Or would this be pointless given my sons daddies have parental rights?

Definitely write a will and state your preferences! It won't be pointless.

Nothing is 'automatic'. If it went to court, the judge would need to make a decision based on the best interests of the child. All those factors you mentioned could be taken into account.

Definitely get legal advice and have a will written by a professional. IMO it's entirely worth it for the peace of mind.

Do get legal advice.

Surely if the father wants custody of his own child on the death of the childs mother he would get it? Assuming no criminal record regarding abuse etc.

I hope someone who knows the law comes on to give you an indication, OP.

Thanks everyone. My sons father is just not that good with him, he is quite selfish and has taken steroids (and continues to do so as far as I am aware) this just makes me uncomfortable as I wouldn't want my son in that environment. I'm not even sure that he would want my son full time, as in reality I just don't think he would cope with it very well.

I would never try to stop their relationship though I just think it would be in the interest of my son to live with my brother who is more mature and in my opinion could offer him a safer and happier environment. Obviously I hope it would never come to this as I'm fit and healthy at the moment but you just never know.

I think I will seek legal advice about this and get my wishes written in a will as at least then if anything did happen my wishes are obvious. I just want the best for my son and I do believe that given a choice he would rather live with someone who he sees regularly rather than his dad who sees him every few months at most.

Surely if the father wants custody of his own child on the death of the childs mother he would get it

Not necessarily. If there is a dispute the courts would decide what is in the child's best interests.

The presumption is that the other parent would care for a child on the first parent's death, however I frequently write wills appointing guardians notwithstanding that the father survives.

I always make it clear that the appointment of guardians can not override the father's parental rights, however frequently the father has little or no contact and so if the worst happens, the appointed guardians can apply to court for a child arrangements order (formerly a residence order).

The court has to take all relevant factors into account, including the appointment of the guardians.

I also suggest to my clients that they keep with their copy of the will a letter explaining their reasons for the appointment, and update it regularly. It's best not to go into too much detail in the will itself as it will one day be a public document.

I have no idea about the law but have seen what happened after a lone parent with a relatively uninvolved exp died. She had a will stating preferences ie her parents with whom she and her ds lived. The child went to his Dad. For 18 months until his Dad asked the maternal grandparents to have him.

Sorry to hijack OP,

but what if the father is not on the birth certificate?

As people are saying the presumption is the other parent will have the child after the death. You can express your wishes with your will in a letter of wishes and if you were to die then the family could apply for the child to live with them and the father would put his case the other way.
it would be the same the other way round - if a father died who the child lived with or was with half the time etc the mother would take the child when the father died ordinarily unless the family could prove the other parent was not suitable (and for older children 13+ they usually would have a say as it is hard if a 14 year old keeps running away to live where it wants to live to force it).

thanks again for all the replies, showy I imagine if my son went to his dad it would end in the same scenario as you described or his family (who have seen my son a handful of times since birth) would end up with him. It's actually very stressful to think about really as it would be really scary for my son I imagine especially as his dad lives so far away. I really would hope if it ever came to this then that would never happen as to me it's common sense to keep things as stable as possible for a child.

Woodenheart if the father doesn't have PR, he'd have to apply for it through the court. Unless there's a very good reason he's likely to obtain PR. I'd imagine in those circs the dad would also apply for a child arrangement order at the same time.

Thank you mumble thats really helpful,

OP I hope you are ok, it is stressful & you have prompted me to get a will sorted.

Thanks woodenheart, I'm glad starting this thread has made you think about writing a will, it's certainly made me think about putting things in place as well as I can just in case anything did happen.

On the advice of a solicitor I have written a will. It says that dd will go to my sister. My sister has said that no way would she let my dd go and live with her dad because he isn't involved in her life.

Does anyone know what would happen in the event of my death, would ss contact my exh automatically or would it be down to my family to inform him?