DD continuing to live with DH (not her Dad) if I should die

[GiveMeStrength2day]

I will TRY to keep this as short as I can!
My DD is 12 and has "high functioning" autism. Just recently she has been asking "what if" stuff. The latest is what if I (as in me) died, who would she live with?

For background, I left her Dad for my now DH (long back story). My DD adores my DH and, whilst she is happy to see her Dad for weekends and stuff, she can take him or leave him. Her Dad and my DH are completely different.

DD lives with me and DH and she is very happy. I do have a will in place which would leave my property solely to DD but with the caveat that DH can live in the property until his death or he decides he wants to live elsewhere.

If I died, I would wish for DD to remain in her home living with my DH. I think it would be detrimental to her mental health and general happiness for her to have to live with her Dad. Not least because DD really doesn't like her Dad's partner and refuses to speak to her (selective mutism as such) and has vowed to never speak to her. DD also doesn't speak to the partner's children. Obviously this can cause difficulties. DD goes to a special school which, given its location, I'm sure she'd have to leave if she had to live with her Dad.

I have a problem where her Dad lives as it isn't a particularly good area and there seems to be drug-taking etc there (her Dad and his partner are not in any way a part of this)

I have gently asked DD what she would like to do if I died. Her response was that she would still like to see her Dad but would definitely want to stay living with my DH

My DH is worried that if the worst happened, he wouldn't have a leg to stand on as to what happened to DD

This whole situation is hypothetical really as I certainly don't plan to die any time soon but, of course, you never know....

Is there anything I can legally put in place?

No idea of legalities but my friend’s dd stayed with her stepdad, not her father. Unfortunately the stepdad then died, so she ultimately ended up with dad anyway.
Would her dad try to insist?
My friend’s ex didn’t. He was nicely shacked up with a new family and wasn’t interested in a problematic grieving teen.

I think that if your ex has parental responsibility, he can insist she move in with him. You would know how likely he is to try that - would it be possible to discuss with him what would be best if you did pass away?

I honestly couldn't say if DD's Dad would insist upon her living with him. He isn't the most attentive or proactive of fathers and quite often my DD has a more mature approach to things than him. I wouldn't mind guessing that the partner would encourage him to make a stand just out of principle though - she does seem to wear the trousers in their relationship. The partner has previously pretended to be my XH on messages to get her two penn'orth in!!

I know a family where this happened- mum died of cancer, child stayed living with mum's partner. They had a good parent/child relationship, and Social Services assessed him and were fine, so she stayed with him.

I think I am going to have to try to have a conversation with him. Bit tricky as he really doesn't like me and he tries to avoid looking at me let alone speaking to me!

I'm not sure about his official parental responsibility status in that it wasn't set out in our divorce. I assume though as he is DD's father then it defaults to having joint PR

I just wasn't sure if I was able to lodge a some legal thing? Probably talking nonsense there

If it came to "references" etc for DD to stay with DH, I think numerous people (including her school if they were to get involved) would come forward to give their support that she should stay with DH so hopefully all would be fine

Would it help that because of DD's autism, she still has a specialist health visitor who I can call upon if I need anything ASD related? She has met DH and therefore knows their fab relationship

As I said, I'm not planning on dying but...

As you were married to your ex he has PR. If he agrees, you can give PR to your current husband as well.

Contrary to what was said up thread, having PR does not mean your ex can insist that your daughter moves in with him. If there is a dispute about where she lives the courts would look at what was in your daughter's best interests. Her views would be a major part of this. The fact she is currently living with you and your partner would also be a key factor.

There is nothing you can put in place to guarantee that your daughter stays with your husband. You could leave a letter expressing your wishes and your reasons but it will not be legally binding.

I think it will be fine. It's DH that's worried about it all.
If anything does happen to me I will haunt XH until things get sorted

PS. Thank you for your advice

Legally custody would revert to your ex DH and the father. He would have to agree that he wanted DD to stay with the stepdad but it's entirely up to him. You'd need a parenting order or adoption by the step dad to overrule it but then you'd be entitled to no CM from the father. Both would need the consent of the father

I've just messaged four of my close friends but who aren't friends with each other so have independent opinions if that makes sense. They have all agreed (and I know I can trust them to keep to their word) to support DD's wishes. XH does actually hold one of those friends in high regard so hopefully, if it came to it, he would listen to her

Legally custody would revert to your ex DH and the father. He would have to agree that he wanted DD to stay with the stepdad but it's entirely up to him. You'd need a parenting order or adoption by the step dad to overrule it but then you'd be entitled to no CM from the father. Both would need the consent of the father

The OP is after legal advice. Guessing doesn't help. This post is completely wrong.

A parenting order is a court order designed to help parents stop their child from offending, engaging in anti-social behaviour, skipping school or similar. I think, from the rest of the post, the poster meant to refer to a parental responsibility order but that does not require the consent of the child's father. A parental responsibility agreement would require the father's consent.

And no, legally custody would not revert to the child's father. Apart from anything else, there is no longer any such thing as custody in family law. The OP's husband can legitimately refuse to hand over the OP's daughter to her father. If her father wanted to take her away, he would need to apply for a child arrangements order. As per my previous post, the daughter's views would be a major factor, as would the fact that she is currently living with the OP and her husband.

The DD is currently 12 so presumably the court would take an interest in her opinions.

Thank you all
I'm feeling relatively comfortable that all will be fine. It's DH that's fretting really. DD wouldn't hesitate to voice her opinion