What would happen to ds if I died?

[beggarsbanquet]

Sorry for the thread title, I don't really even know if this is the best place to post this, but it some thing that's been bothering me recently.

Ds's father and I divorced about 3 years ago, though we had been separated for some years before that. It was a very difficult, dysfunctional relationship, significantly due to the fact that XH had issues with alcohol and drugs. Married life was pretty miserable.

Anyway, when we split we managed to maintain something approaching a civil relationship and never needed to go to court to sort out contact, money etc. it wasn't easy but we did it just about. XH was relatively reliable for most of that time - not all the time by any means, but it was manageable. He could be very difficult, still drank a lot and I guess also did drugs. The thing is that he was in a stable relationship (with a very long suffering gf!) which helped to calm him down a bit.

The thing is that in the last year or so he has gone off the rails. His relationship has broken down, he has got involved with some damaging people and has slipped back into his old ways. He has been in rehab recently but fell off the wagon about two weeks after leaving residential care. He says he is clean now, and whilst I want to try and be supportive, I don't really trust him to stay clean/sober. It is very hard for him.

I have put measures in place to ensure that the effect on ds is minimised and at the moment am fairly happy. He sees ds once a week as I think it's important to maintain their contact.

It has been playing on my mind though. What if something was to happen to me? Ds would have to go and live with him, wouldn't he? I cannot let that happen - it would be disastrous - XH can barely look after himself sometimes. I would want ds to live with my parents and see XH regularly. My parents do a lot of childcare for ds and always have done, they are very involved and stable.

Do I have the right do ask this? I remember asking something similar when I was thinking about divorce and was told no, if he has PR he would get residency. Is there anything I can put in place should something happen to me? I have felt very anxious ever since XH began drinking heavily again and this has been playing on my mind, any advice much appreciated.

Btw ds is 10.

I'm in nearly exactly the same situation as you. I've told XH in no uncertain terms that of anything ever happened to me he will let DS live with my mum and dad full time and he would have supervised access as usual. Luckily he agrees, my parents would be able to afford a good lawyer, and could prove he's an unfit parent in court. It still makes me stressed though, especially as XH is Asian so he could take DS back and never be heard from again

But to he honest, deep down I know he wouldn't want the responsibility of DS full time so would happily relinquish control to my parents and come and be a disney dad a couple of times a week.

I've put in my will that I would want DS to live with my parents etc. Not sure if that would count for anything!

Definitely talk to a solicitor if you're worried and see what can be achieved in terms of appointing legal guardians after your death.

I don't think XH would ever agree to anything like that, that's the problem nutricious. He's not a bad person but he knows all about his rights, not so worried about his responsibilities sometimes though... He is an addict and at times everything else comes second. I don't know how one would prove that in a court though!

Cogito, you're right of course, I know I do need to talk to a sol. I always imagined that XH would have to give his permission for legal guardians to be appointed though... PR is a bugger!

God it's awful that I have to consider stuff like this.

Sorry, nutritious!

I made a Will stating that it is my wish for my ds to choose who he lives with and I am fortunate enough to be in a postion to ensure that my adult dc's would have financial support to enable ds to live with them should I die if he chooses to. XP does not have the problems your xp has but he does not have suitable accommodation for our ds.

My solicitor pointed out that once a child reaches the age of 12 the courts (or social services or whoever is dealing with it) primarily take the wishes of the child into account. I appointed my adult dc as Legal Guardians but it has less sway once ds is 12 apparently.

However, I would guess that your ds would choose to live with your parents rather than his father given what you say. Make a Will. Mine cost £88. I also put in a clause stating that XP was in no way to benefit financially from my estate.

I do recommend that you make a will, appointing your parents (or someone else) as guardians. I'm a will writer and in these circumstances normally write it in such a way that it is clear that you do not want the father to have the child(ren) living with him even though he has parental responsibility, and simply say that you believe that it is in the child(ren)s best interest to live with the guardian.

Then I do a side letter, ie a letter which is not made public in the same way that the will is, explaining the background and the reasons you have made the guardianship appointment. In the very unlikely even that you died before your youngest was 18, and the father did not accept the guardianship appointment, he'd have to make an application to the court for a residence order. The court would see the side letter as well as other evidence, in particular a Cafcass Officer's report, recommending what they think is in the children's best interests, and the court makes an order.

In other words, whilst the guardianship isn't binding on the court, it would be taken into account.

The reason I don't recommend that you go into the gory details in the will itself is that it's actually very unlikely that you will die before the child is 18, and the will eventually is a public record. So when the child is 18, you can quietly destroy the side letter, and those details aren't made public.

Equally, of course, it's a good idea to make a will to ensure that your estate is held on trust, and the trustees (aka executors) will make sure that your ex doesn't receive any money unless he is actually caring for your child.

Feel free to PM me if you'd like any more info.

Thanks mumblechum and blousey. I do have a will but it was not modified when XH and I actually divorced so that is top priority really isn't it? I didn't know about side letters; that is really interesting. I would not want to punish XH or anything but there is no way I would countenance him having day-to-day care and responsibility for ds.

I think I'm panicking a bit because, even though I know rationally that this is very unlikely ever to be needed, I have been so thrown by the events of the last year or so that I need some clarification to ease my anxiety. Life is so unpredictable, after all. I feel incredibly guilty because I realise now that XH put ds into some dangerous situations (eg drink driving) which maybe I could have done something about, but I didn't know how bad the situation was. I don't want ds to ever suffer because of my naïveté.

Thanks again, really helpful advice.

See a family law solicitor. It sounds as if you would have plenty of 'ammo' so to speak - a document detailing his addiction issues, backed up with the facts - rehab, residential care etc., then further that with a very detailed account of how and why he is not able to care reasonably for your DS.

Then set out details of what contact you WOULD want - if you can leave details on how you DO see it working I'm sure that would help.

I would possibly also try and speak to SS for advice. Given that you are supporting good and suitable contact right now, they might have some good advice.

A solicitor could help you tie up the rest of your will in ways you might not think of which would also help to tie his hands so to speak. I don't know myself, but I imagine that willing all or as much as you can of your estate (do you own your house?) to your parents in trust for DS might also spike his guns. If he would not be able to e.g. move into your house and take over - if your parents had the right to sell your house and control the money - it might make a difference to what he decided he wanted.

I wonder if it might also be possible to make some kind of statement on what you wish for DS's family life in order to strengthen your parents' case for preventing him taking DS abroad should the worst happen. Get advice now on what they could do - if anything - so that they wouldn't be in the position of having to research what legal recourse they had whilst grieving.

However - it's very unlikely to happen, and the good news is that within a couple of years, your DS will have the right to choose, and this won't be an issue.

I don't own property so that's not too much of a concern, thankfully. The small amount of savings I have would go into trust for ds, definitely.

But XH is not from the UK so could easily take ds 'home' with him and would be very likely to do so; he's not a fan of the UK... He would have no qualms about separating ds from his home, family, friends, school etc. that is a very good point and something I need to think very carefully about.

You need to appoint some very guardians, people who have a close relationship with ds and preferable could in the short term move in with your ds to keep his life stable. You could also prime them to involve social services asap due to your and their concern that his father will not act in his best interests.

Absolutely get some proper legal advice though from an experienced solicitor in this area.