Can my ex take my daughter if I die?

[Didi6]

Hi there
I think I probably know the answer to this as I have done some internet research, but am hoping for some reassurance. In the process of drawing up a Will I think i've found out that as my 3 year old daughter's Dad is on the birth certificate he gets automatic guardianship, even if I appoint my sister (who has been involved in my daughter's upbringing from day 1). I'm so worried about this, as his lifetsyle is unconventional and unsuitable for a small child. He does love her, but sees her sporadically, has no job, no fixed abode (staying with friends in France), has a bad temper, still likes to party hard etc.
Whereas I have created a stable and happy environment through sheer hard work and the support of friends and family. My daughter is so happy and secure and I KNOW IT WOULD DESTROY HER if she was taken away from all she knows and loves.
Does anyone know anyway I can make sure my sister would get Guardianship? Would applying for a residence order help? I want to do this, but know it will get his back up and make him more determined to stop me doing this because of his ego.

Hi Didi6,

I'm in a similar situation to you and unfortunately I believe you're correct in thinking that yes, if you were to die while your daughter is still a child, your ex has the right to bring her up.

I sought advice from a solicitor about this a couple of years ago (my DC are a bit older than your DD) and was told that, no matter what I put in my will (eg a 'letter of wishes etc'), unless my ex is a convicted paedophile or behind bars ? neither of which applies ? he would be entitled to seek custody of my DC. Like you, I feel this is not ideal, but that's the law.

Thanks for that. Thought as much . Do you know if their custody is immediate or would that have to seek a court order. I don't understand who would have immediate reponsibility.

If you have appointed guardians then he would have to seek a court order, I have a similar sitiation with two daughters from a previous relationship that do not see their father becauses hes a nutter, i have another child with my partner now and i have appointed him and their godmother as guardians so this would mean in the short term that the ex could not just turn up and take them.

Good point, Tarty, and that would delay the inevitable, but if he did seek a court order, the court would rule in his favour (so said my solicitor). I was told that all I could do was leave a letter of wishes in my will explaining that, in the event of my death, I would like X (not XP) to bring up my DC.

I keep meaning to write this letter (but keep putting it off) to explain to my XP that if he should end up with our DC, it would be vital for him to move into the house where they live now and keep them at the same schools, with the same friends etc etc. However, the reality of it is that he would be at liberty to take them abroad and remove them from everything familiar. It makes me to think about it. Just better stay alive

Yes, don't die, that is an excellent plan. And yes it is delaying the inevitable but do write the letter. IN my will I have a specific bit about there being absolutely no provision for my ex - as he wont let me have a divorce and i am having to wait 5 years! - this sort of thing scares me to death (excuse the pun) but i hope in my case with a step father here and siblings that my girls would be able to stay put - as they haven't seen him for a long time. If you made financial provision for your sister the it would be easier to fight - the courts do want children to stay in familiar surroundings and if you set that out in a letter then it could not be ignored. You have to ask yourself if he would be bothered to fight a long court battle over this. He might not, he might see sense.Just to the letter and the will and then put them away and get on with not dying.

It might help to put in the letter/will that you still want the X to have contact with the DC and expect/require the guardian to facilitate that as much as you have done.

good point solidgoldbrass - that's a really good call

It just occurred to me that an XP who is a bit lazy or selfish (as opposed to really abusive) parent who sees the DC sometimes might be actually justifiably hurt enough to make a legal fuss if the custodial parent's will made no mention of him/her and allowed or seemed to allow for the cutting out of the XP altogether - however including instructions to the effect that the XP matters should a) avoid any strops and b) if the XP did get revved up enough to demand custody despite being demonstrably unsuitable, it would show good intentions on behalf of the dead parent which a court might well take notice of.

Is there a residence order in your favour? Section 5, Children Act 1989 provides that a court may appoint a guardian if a parent with a residence order in their favour has died during the time the order is effective. A parent with parental responsibility or a guardian may appoint another to act as guardian in the event of their death and then the court considers the child's best interests in light of the Welfare Checklist in s1 of the Act.

Thanks for all your replies. Def getting motivated to sort this out! I think SolidGoldBrass you are spot on and in fact I have written a letter to ex to go with my Will asking him to dig deep and do the right thing for DD and that he would always be her Dad and have contact with her and that she could decide when she's older where she wants to go.
He is ultimatley lazy and selfish and has totally bizarre ideas of what's right and wrong for a small child and could never continue what I have worked so hard to set up.
I will see a solicitor and want to get a residency order but really fear that will anger his ego and create acrimony when we have come to a some kind of civil relationship at last.

Definitely first call is not to die!
Still keen to hear other thoughts.