can my partner get custody of both children if I died?

[mummy277]

My daughter is 2 yrs old and hasnt seen her biological father since she was 6 months old. He is abusive and controlling with many police logs. In order to see her he must attend anger management and have contact through an access centre due to serious concerns, which he is refusing to do & so just makes 1 attempt every 6-9 months in a letter asking to see her expecting me to give in.

My partner has raised Ella ever since. She adores him & he doesn't see her as anything other than his daughter. I understand the importance of fathers & nobody is out to replace figures but only to give a child stability & love. She does call my partner daddy as she knows no different. We are expecting another baby in a couple of days and we all will be using the same surnames as 1 healthy happy family unit.
We live in a nice big house in the area I grew up in with toys, garden, 3 bedrooms, 2 minutes away from my mums house. Life is so perfect and stable and she is growing up so beautifully and safely. My only concern is that her daddy that deserves to be her daddy isnt biological and I dont know what would happen to her should something happen to me. She doesnt know her biological father who doesnt care enough to do the things he REALLY needs to do in order to see her, who can never keep a job, relationship or home and who of all things is a violent angry man but manages to get away with it all time and time again despite the polices efforts.
Would she be taken from the family home, her daddy and baby brother? Also if that were to happen she would then be taken from my family and my partners family with whom we are all very close with and who love Ella and all provide her with everything she needs from role models to people who will teach her morals. ALL ARE GOOD RESPECTABLE PEOPLE UNLIKE THE OTHER SIDE OF HER GENES (i kick myself i could ever get involved with such a family or even just her biological father but then i remember that i wouldnt have her if i didnt)

My partner and I are due to be married March 2014 (if that matters)

i think this is prob the best place to post this as its more of a 'step-parent' issue techniqually law wise i suppose, what do you reckon?

I think you need a will that stipulates that the children are kept together with your new partner should you pass away.

I think you need to make a will which makes your feelings and wishes clear. Tbh your ex would have a strong position I think, by a court will take into account your wishes and foremost what is best for the child so in view of the police being aware etc. all this would be taken into account.

Agree with the others. However, my immediate thought was can your DP adopt your daughter? I have no idea though about that process, or whether that would be possible if her dad didn't consent, or whether it would involve a court fight.

Has your DDs father got PR? If so, then responsibility for your DD will automatically pass to him on your death.

Regarding your DP, A married step-parent has the right to apply to the court for contact, but not residency - he would have to seek permission from the court first to apply for residency, if that makes sense?

If you were to die before you are married and have been living together for less than 2 years, then your DP will not even have the automatic right to apply for contact and would have to seek the courts permission to apply.

Obviously, any wishes you have recoded will be taken into account by the court, although they are not binding, and I suggest you keep a well documented record of the contact (or lack of) that your Ex has with your DD - if necessary your DP could use it to dispute any claims that your ex may make about his involvement in your DDs life.

Mumblechum1 is a will writer and did our wills (similar circs)

She has an advert on classifieds www.marlowwills.co.uk. I'm sure she'd be able to help you with making a will.

The safest thing is for your new partner to adopt her BUT her biological father would have to give permission - is it worth exploring?

If you write a will I would go to a solicitor and not a will writer. It will be more expensive but there are probably things that a will writer is not aware of in this sort of case and saving a few pounds is a false economy.

Exotic, as a matter of fact I'm a qualified lawyer as well as running my will writing business, and also a member of the Institute of Professional Will Writers, regulated by the Office of Fair Trading.

Adoption is not by any means an easy option; Social Services would have to support the application, the father would have to consent or have his consent deemed unnecessary, and courts are reluctant to grant adoption orders in these circumstances.

OP, entering into a PR agreement once you have married your partner would be a quick and effective method of partially solving your problem, but you should also make a will and appoint your partner as guardian, backed up by a separate letter of wishes explaining the reasons for wishing your child's father not to care for her in the circumstances. The letter can then be destroyed when your daughter is 18 and the guardianship is no longer an issue.

There was a similiar thread on here a while ago, and I think the OP had sought legal advice which said that you can write what you like in a will but basically the next of kin decides, which in this case is her father.

I think it is important that you are honest about your family situation otherwise you are building a timebomb into your family.

basically the next of kin decides, which in this case is her father

This is incorrect. Under the Children Act 1989, the Court has jurisdiction to decide on residence of the child if there is a dispute.

I didn't say that adoption was easy! I said it was safest and worth exploring. In this case I would go to a solicitor for the will.

As a lawyer myself with 25 years experience in family law, including adoption, my experience is that in the OPs circumstances, she is unlikely to be successful in an adoption application.

But worth exploring-the biological father may just sign papers -probably not but silly not to put feelers out.

Thing is, even if he does, SS have to support the application, and the court has to approve it.

The reason that step parent adoptions are very rare these days is that the court is reluctant to cut a child off from one side of it's family for ever unless there is a very strong reason to do so.

I dare say that there are all sorts of obstacles, but it is still silly not to even look into it.

Yes, of course the OP can look into it.

Here's a link which may be useful OP:

www.lincolnshire.gov.uk/parents/caring-for-children/adoption/adoption-for-step-parents-or-other-relatives/59031.article

mummy277, my DH was in a very similar position to what you're talking about - when he met his DSC's mother several years ago, their biological father was only allowed supervised visits for similar reasons (police involvement etc). DH and the kids' mum never actually married, but when she died unexpectedly he got custody of the children. They had a son of their own by then which I guess helped, but also he had the full support of her family and social services. Their biological dad did try to get custody but he lost the court case.

I would be astonished if social services allowed your ex to have custody of your daughter given the history and the fact he's not even playing by their rules - but to put your mind at ease I think you should speak to them and /or seek legal advice.

Good luck!

Can you not just apply for a Joint Residence Order? That confers Parental Responsibility on all named parties, so it would give PR to your DP. It doesn't sever the parental relationship with your ex, so courts are more willing to look at it, is my understanding. That way if anything happened to you your ex would have to apply for residence himself, as there's an existing court order in your DP's favour that awards him PR too. I'm sure the lawyers here can advise you if that's wrong, but it could be a simple way of ensuring he has the legal status of a parent, plus a residence order in his favour.