Stating in a will who will take care of children

[Juanbablo]

Hi, if we make a will and say who we want to have our children in the event of our death, is that legally binding? Also my eldest child is not my husband's biological child and has never had contact with his biological father. If I state in a will that in the event of my death he is to stay with my husband, would that be legally binding too? Thank you.

You would of course discuss it with any named guardian if they are happy to take on the responsibility. Even so, they can refuse even if named - you can’t force someone to raise your child . As for your husband, has he adopted your child? If not I’m not sure but I would think his biological father would have to petition to get custody of your child if your child has only had your partner acting as a parent, has half siblings and you have named them as guardian in your will.
Use a lawyer to draw the will up and your questions will be answered according to your individual circumstances.

It's legally binding, but unless someone can show that the arrangements are so unsuitable that it must be overturned (and probably demonstrate better ones) then the wishes will be upheld.

It is vanishingly unlikely that cohabiting siblings would be separated, and staying with the surviving parent (even if step parent to one) is a totally acceptable arrangement, unless that surviving parent is deemed unfit.

No it isn't. You can appoint guardians but they aren't either.

Ultimately children who are old enough have opinions and Social Services will step in if it is a mess.

Thank you everyone. I will contact a lawyer. No my husband hasn't adopted my son. His father isn't on the birth certificate but we were told we still had to get his permission. Is that correct?

Oh crap!

Just looking back at Threads I'm On, and have noticed I missed a terribly important 'not' from my first sentence earlier. I hope the rest of my post makes more sense now I've had a chance to put that straight!

It isn't legally binding, and is more like a request. Does your son's father have parental responsibility? If not, you can speak to a solicitor about your husband adopting your son, or at least having parental responsibility.

He does not have parental responsibility. I don't know where he is. He last saw ds1 8 years ago and has seen him a total of around 6 times in between the ages of 1 and 3. He is not named on the birth certificate. There seems to be a lot of conflicting information out there so I think i had better contact a lawyer.

The guardianship thing if we both die is kind of by the by but something we would put in if we make a will. I'm just very concerned now about what would happen to ds1 if I died.

OP, what is the relationship between your son from a previous relationship and your husband like? I just know of a lady local to us who died of cancer. Three boys, one from a 1st relationship, two from the current marriage. when she died, her husband decided it would be better to split the boys so the old-marriage son went to his grandparents, whilst he kept his own boys. It does happen, however much sucking of teeth people do when they hear about it.

If you want your husband to have a definite claim on caring for your boy, he needs to adopt him.

If you want your husband to have a definite claim on caring for your boy, he needs to adopt him

No he doesn't. If there is any dispute about where the OP's son lives after the OP dies the courts will decide what is in his best interests. The OP's husband will have a strong case based on the information the OP has posted.

@Juanbablo - If your son's father is not named on the birth certificate and you were never married to him, you can give your husband parental responsibility by entering into a parental responsibility agreement with him. You can find the necessary form at www.gov.uk/government/publications/form-cpra2-step-parent-parental-responsibility-agreement

Thank you for the link to the form.

Their relationship is good. He's he only father ds1 has ever known. We've been together since ds1 was 4 months old. I would say with certainty that they would want to stay together.