Any lawyers or experts in the house?

[gr8tpanther]

I have a life changing decision to make. My health isn't the best, and I need to make some decisions for my childrens' futures! Their father and I have been divorced for many years, as in he has already been married and divorced AGAIN! Neither of us have custody, as neither of us can AFFORD a custody battle, not to mention that HE barely has anything at all to do with the kids.

Now, what I need to do is get a Will made up, but I want to know if I can name someone ELSE as guardian so that HE can't have custody! Neither of the kids want to live with him EVER, and I really don't think that he would give them a good life, OR the kind of future that I want them to have!

What do I have to do to ensure that IF something happens to me, that my kids will have the life I intend for them to have, and not get lost in a life that I try so hard to keep them from having to have?

I don't really know where else to go for these answers that won't cost me alot of money. So, I hope that someone on here, can help me.

Thanks.

 

[Rafiki Rafiki Rafiki]

Wait. Didn't you say neither of you currently has custody? If you don't have custody, you can't determine their custody after your death.

 

[gr8tpanther]

Nothing in writing, nothing through the courts. Never needed it cause he never wanted them. But when I die, does that mean that he will automatically get them? Is there a way I can prevent that?

 

[barkley]

from my experience dealing with child custody in social services:

until a court decrees custody differing-the custody of a child is joint between the mother and father (as named on the birth certificate-unless a question of paternity is raised by named dad or bio mom it is assumed by the courts the father is as named on the b.c.).

to change this custody status either the father must enter into an agreement willingly or a court decree must be made (and both will come up for revision in the ultimate death of the custodial parent).

if you do not have resources for an attorney-contact your local legal aide bureau-they have sliding fee scheduals based on income/resources. they may advise you that pending a determination regarding custody you at the very least name legaly your choice of physical guardian and your decision of financial guardian (re. any monies left to the children or would be payable as a benifit to a child upon death of a parent).

it is my understanding that unless a parent has voluntarily waived or been ordered by a court to surrender their parental rights they will be first in line to assume custody of a child.

hope this helps a bit-call legal aide-best wishes

 

[gr8tpanther]

from my experience dealing with child custody in social services:

until a court decrees custody differing-the custody of a child is joint between the mother and father (as named on the birth certificate-unless a question of paternity is raised by named dad or bio mom it is assumed by the courts the father is as named on the b.c.).

to change this custody status either the father must enter into an agreement willingly or a court decree must be made (and both will come up for revision in the ultimate death of the custodial parent).

if you do not have resources for an attorney-contact your local legal aide bureau-they have sliding fee scheduals based on income/resources. they may advise you that pending a determination regarding custody you at the very least name legaly your choice of physical guardian and your decision of financial guardian (re. any monies left to the children or would be payable as a benifit to a child upon death of a parent).

it is my understanding that unless a parent has voluntarily waived or been ordered by a court to surrender their parental rights they will be first in line to assume custody of a child.

hope this helps a bit-call legal aide-best wishes

Thanks, I have a special needs child and I just KNOW he would not be good for her, he does all he can to avoid being WITH her, let alone RAISING her!

So... thanks for the info, on the phone I shall be come Monday morning.

 

[ClarabelleCowFan]

First of all to you!

You most likely have some sort of assumed custody since the children live with you full time. I do believe that your ex will automatically get custody if something does happen to you unless you can get him to sign off on his parental rights now. Note also that if he does sign away his rights then you will also waive any future child support so weigh that option. (You can also use that info to perhaps influence his decision to willingly sign over his rights too!).

If something does happen to you then your children will be eligible to receive a monthly check from Social Security and that in itself would make having custody of them very attractive to your ex.

If you don't have life insurance and can still buy some then do that ASAP and name someone you trust as the trustee on the funds so that your ex can't get to that money. Have the funds set up so the children can't access them until age 25 (or older).

Good luck!

 

[barkley]

Thanks, I have a special needs child and I just KNOW he would not be good for her, he does all he can to avoid being WITH her, let alone RAISING her!

So... thanks for the info, on the phone I shall be come Monday morning.

o.k.-if you have a special needs child consider discussing the following with legal aide:

setting up your estate in such a way as to keep your child eligible for any benifits they may currently be receiving or may need to apply for (you can structure it such that it does not create a period of ineligiblity to ssi or be used for medi-care consideration, and should financial times get tough for the guardian allow the child to be eligible to afdc without the consideration/use of the financial assets you have left),

setting up a minimum standard of medical care document for the child. this ensures should you have funds available that are left in trust for the child, the funds you leave must be paid to provide the care you deem minimaly appropriate for your child (usualy in the case of private health care-it prevents the financial guardian from simply paying for "vanilla" health care vs more enhanced health care-some financial guardians do this as a cost saving measure),

if the child is special needs such that he/she will need a guardian into adulthood, naming a secondary or subsequent guardian (esp. if the number one choice is older in age and could pre-decease the child).

there are some AWSOME people on the disboards disability board who may have some experience with setting up their wills and the like with special needs kids in mind-you might hop over there and reap a weath of information.

 

[swilphil]

Definitely contact the Legal Aid office. Laws vary greatly from state to state. Another option would be a clinic at a nearby law school. I believe Temple University has one, but there are several other law schools in your state. I believe in order to prevent your ex from having custody without a court battle he would have to agree to sign something that waived his parental rights (and even then I don't know that it would be binding). Good luck!

 

[SillyMe]

When my dd14 was born I had a will drawn up. Her "donor" was not in her life and never wanted to be a part of it. My attorney told me I could list 3 people in my will to take custody of my daughter. He would have to fight all 3 people to get custody of her since it was stated in my will that he was NOT to have custody. Now, that was 14 years ago and he has abandoned her, so I'm not sure about your situation.

 

[ClarabelleCowFan]

Good point about abandonment. In this state 6 months of no contact is considered parental abandonment and you can petition the court to have his parental rights revoked.

 

[mickeyfan2]

Under the circumstances that you state I don't see anyway that he will not get the kids. He is their parent and unless the court has removed his parental rights he will get the kids upon your passing. You need to contact a lawyer if you need a different outcome.