Can I stipulate who my son will live with in a will?

[opalescent]

I am getting married this year. My fiancée and I have a daughter together, and also my son from a previous relationship lives with us.
My partner has been stepfather to my son since he was 2, he's now 6. He spends every other weekend with his birth father. All is fairly amicable, and very settled.

If something were to happen to me, I would be distraught to think that my son might no longer live here, with his little sister and stepfather.

I haven't actually ever discussed this with my ex, but I accept that the assumption might be made that it would be better for my son to move and live full time with his dad,
I truly feel that if it would be better for him to stay here, with all that is familiar, continuing at his current school, and seeing all the people that are in his life at present.

Do I have any influence over what would happen in the event of my death? Could I write my wishes in a will? And would they be observed? Or would his birth father's parental rights supersede any wishes I had?

You can make a guardianship clause which serves to vest parental responsibility in the nominated guardian when you die. However it only takes effect when the father has also died. Your wishes can be expressed but it is down to those surviving you to decide or work out where your son lives.

If your sons father is in the birth certificate then he will have parental responsibility, therefore he goes to his dad

You can express wishes but they are just that, wishes, you can't overrule his parental responsibility (quite rightly imo, he is as much your DS's parent as you are!)

Tricky situation. You can expressed your wishes but likely dad would have the final say and depending on your son’s age his own wishes.

Might be best to have a good conversation with ex about it. Are there other family members where you live too? (Aunties/uncles?).

We have nominated 3 people to decide what would happen to our children as situations change over time. One from my family, one from DH family and a long time friend. What is right now, may not be right in 5 years time as everyone's situations are constantly changing and I always remember hearing of a friend that had been sent to live with a stranger, who 15 years previously had been close to her parents and agreed at the time to look after the child. She moved away from everybody and everything, heartbreaking.

How old is your DS?
I recently took advice on this as my DD (14) has expressed that if anything happened to her she would like to continue to live with my DP and not her Dad and his partner. DP is a trustee on my estate and executor. I have listed him as guardian. The advice I have received is that at DD's no court would force her to go and live in a household she doesn't want to and then my guardianship would carry weight.

Watching with intrest in same situation with my DD

Thank you for the replies. He is only 6. He's very close to his dad, and I fully appreciate that his Dad has a significant say in his welfare.
It just feels difficult, as my son has a lovely and very settled life within my immediate family. He is very close to my fiancé's family, and considers them all to be his cousins/aunts/uncles. And of course he lives with his sister here.,
We live around 40 miles from his dad- not a huge distance of course, but far enough that he would have to change schools/friendships/daily activities if he moved.

I think I will discuss it with his Dad at some point,

It might be worth mentioning that you want the siblings to remain together. Considerable weight will be given to your wishes. They can be contested, but if what you stipulate is appropriate and rooted in your DCs' best interests (eg keeping bereaved siblings together, something that gains in importance the older they get) then it is very likely to be endorsed.

Like you say, you n3ed to discuss this with his dad first, he has 50% say in your sons welfare.

If you can get an agreement from ex husband in advance, then that’s going to be the best thing because if he doesn’t agree it will be miserable for your son anyway. I’m assuming your DH/P is in agreement and is already significantly part of raising him.

I don't want to be the bearer of bad news but a biological parent that regularly have contact is more important then there step dad / half sibling.

Yes it would most likely have to go to court (unless the father keeps child after arranged contact) and the step parent would have 0 rights even if you make a will making your wishes known.

If biological father died prior to your death maybe the step parent could keep the child but its not a forgone conclusion. Where as if the biological father / other parent is still on the scene (even if NRP) would be a very costly uphill struggle that the step parent most likely wont win even if they have half siblings.

In the course of my career i have had 4 cases were step parent tried to keep the child despite their biological dad was on the scene (in one case the female step parent Mother came out being gay hence the divorce) wanted to keep the child mostly for the CM payments father was very wealthy.

Out of the four cases none were won by the step parent, and only time i have heard a step parent winning when the biological parent still lives is either when the other biological parent declines or the NRP is deemed unfit.

But i have not done family law in the last 5 years so it might have changed since i practiced.

My advice would be seeing a solicitor trained in family law that is still practicing so is upto date with current practices.

Presumably some sort of shared care arrangement which is agreed in advance by all parties would never go to court. So you are likely to see the unhappy scenarios rather the amicable, ‘everyone works together to support the bereaved child’ scenarios

How would you and dp feel about both children going to your eldest's dad in that scenario?

I think Fucksgiven makes an excellent point. You really need to consider this from your ex's perspective.

How would you feel if your ex died and he stipulated your child should go to a friend of his, even for only the days he had contact. You’d hardly follow that right?

Think about it, OP. If your current husband remarried, are you sure your son would be better off there than with his dad?

Personally I would never ever agree that my children lived elsewhere in this situation. What would your ex say?

I think it’s a bit different to that, as this is someone who is already living with her son. It’s more akin to the dad staying he wants his wife (stepmum to DS) to have contact EOW if he dies because they have a child together and he wants his son to keep up a relationship with his sibling.

That might be hard but doesn’t sound so odd as ‘random friend’ senario.

Wow. These replies really have given me things to think about. Particularly in the scenario that my fiancé remarried ( which of course, he probably would!).
It sounds so naive to say, but I really think I hadn't thought about this from all angles.

Thank you all.

If you and your fiancé were tragically killed together would you want your daughter to go to with your son to his dad to keep them together?