My fiancé has full-time custody of his son (The biological mother is a "recovering" drug addict.), and the biological mother basically has very little rights to the son, except supervised visitation. My fiancé & I are soon to marry (April 2nd), & he's going to designate in his will that his son is to stay with his me (stepmother) & my son (half-brother) in the event of the father's death.
1) Would that will be null & void b/c perhaps the biological mother's rights supercedes those of myself (the stepmother)?
2) Does a will not override the biological mother's "rights?"
Thanks- Gina
>1) Would that will be null & void b/c perhaps the biological
>mother's rights supercedes those of myself (the stepmother)?
You can designate a guardian in a will, and that designation will have legal effect, but a court can overrule your wish if a third party files a petition challenging the designation.
The question always comes down to whether or not you, as a third party, can prove that you have established a parent-child relationship -- this is the requirement of constitutional law under the U.S. Supreme Court ruling of Troxel v. Granville.
Now, if the biological parent has no legal custody rights designated in the current custody orders, then that would make her a third party and you would be the legal custodian, therefore it would be her burden to prove the parent-child relationship.
But, if BM has joint legal custody, then upon your husband's death, BM would become the legal custodian of the child, and there would be no custody right to pass via the will, therefore the burden of showing the parent-child relationship would be yours to prove.
The only CERTAIN way for you to retain custody is for you to adopt the child. This would require the BM's consent or proof that the BM had totally abandoned the child (no support or contact of any kind for an extended period of time -- different time limits in different States).
>
>2) Does a will not override the biological mother's "rights?"
See #1.
Thank you for your reply.
There is nothing stated in the current custody orders that allows BM to have SS- Not even regular visitation- Only supervised vistiation, at times.
1) I'm assuming that the legal custody rights that you're referring to doesn't include supervised visitation, correct?
Thank you. - Gina
>1) I'm assuming that the legal custody rights that you're
>referring to doesn't include supervised visitation, correct?
Not correct. There are two types of custody: legal custody is the right to make major decisions regarding a minor child's health and welfare. Parents who are married when a child is born, are entitled to joint legal custody, absent a court order to the contrary. Married parents both have the independent right to make such decisions without the consent of the other parent.
In a divorce, married parents are generally granted joint legal custody, but they may be ordered to cooperate in decision making, or ordered that both must agree on any major decision.
If parents are never married, then the mother has sole legal custody, absent a contrary court order. Generally courts award joint legal custody when paternity is established, making the biological father the legal father.
In your case, it appears that the father has been granted sole physical custody and the mother, limited supervised visitation. None of your facts disclose whether any disposition as to legal custody was ever ordered by the court.
One might assume that if a parent is granted sole physical custody, that the parent is also granted sole legal custody. I wouldn't assume that in your circumstances, because if I were representing the mother, and the father died, I would examine the court orders, and if I didn't see express orders granting father sole legal custody, then I would argue that mother has sole legal custody, and ask the court to make it stepmother's burden to show a substantial parent-child relationship.
Now, look at your court custody orders and see what the EXACT words say re legal custody. And, if you need help interpreting the orders, post them for me.
Thank you for your reply & your assistance.
Apparently I'm not going to get anymore information from my fiancé. This is a touchy subject with him, & apparently, I'm more concerned about this issue than he is. All he'll tell me is that he's got "everything" (referring to the custody of his son) & the BM has "no rights" at all. I asked him if we could look at the custody papers regarding the custody wording, & he asks "What for?"
So, I thank you for your assistance, & if I ever do get to see the custody papers & need your assistance interpreting the orders, I'll write again.
Thank you. - Gina
Then you might want to pose it to him this way: What's gonna happen to his child if he were to die between now and when the child turns 18?? My son's father died almost 2 years ago, but I STILL have to make a will to designate who would have guardianship and custody of him if something were to happen to me, because without it, DS would become a ward of the state, regardless of whether he has a step-dad or not. DH has NO legal rights to him whatsoever. DS will be 15 in a couple weeks, but it's still something I MUST do soon. I've been putting it off for way too long.
Tell him that it's NOT about you, but about protecting his son in case something were to happen to him. If it isn't sealed up tighter than a drum, his son WILL have to go to the mother if he were to die. No question. Unless and until her rights are terminated, she is still a parent. Even if they were (and you didn't adopt him), he would become a ward of the state and put into foster care if your DH died, unless you are made a legal parent.
Life is way too short to take this for granted. My son can tell you that, now that his dad is gone. You can't stick your head in the sand and 'assume' that nothing will happen or it's all taken care of. Lives have been literally turned upside down with that kind of thinking. And if he's delusional enough to think that nothing is ever gonna happen to him....I highly recommend you take out an additional LARGE ins. policy on him. Better to have it and NOT use it than to not have it and wish to God you did........
I think it might help you too...
he said " legal custody is the right to make major decisions regarding a minor child's health and welfare. Parents who are married when a child is born, are entitled to joint legal custody, absent a court order to the contrary. "
And this reminded me of your situation.
Thank you for your reply & your assistance.
Apparently I'm not going to get anymore information from my fiancé. This is a touchy subject with him, & apparently, I'm more concerned about this issue than he is. All he'll tell me is that he's got "everything" (referring to the custody of his son) & the BM has "no rights" at all. I asked him if we could look at the custody papers regarding the custody wording, & he asks "What for?"
So, I thank you for your assistance, & if I ever do get to see the custody papers & need your assistance interpreting the orders, I'll write again.
Thank you. - Gina
Then you might want to pose it to him this way: What's gonna happen to his child if he were to die between now and when the child turns 18?? My son's father died almost 2 years ago, but I STILL have to make a will to designate who would have guardianship and custody of him if something were to happen to me, because without it, DS would become a ward of the state, regardless of whether he has a step-dad or not. DH has NO legal rights to him whatsoever. DS will be 15 in a couple weeks, but it's still something I MUST do soon. I've been putting it off for way too long.
Tell him that it's NOT about you, but about protecting his son in case something were to happen to him. If it isn't sealed up tighter than a drum, his son WILL have to go to the mother if he were to die. No question. Unless and until her rights are terminated, she is still a parent. Even if they were (and you didn't adopt him), he would become a ward of the state and put into foster care if your DH died, unless you are made a legal parent.
Life is way too short to take this for granted. My son can tell you that, now that his dad is gone. You can't stick your head in the sand and 'assume' that nothing will happen or it's all taken care of. Lives have been literally turned upside down with that kind of thinking. And if he's delusional enough to think that nothing is ever gonna happen to him....I highly recommend you take out an additional LARGE ins. policy on him. Better to have it and NOT use it than to not have it and wish to God you did........
I think it might help you too...
he said " legal custody is the right to make major decisions regarding a minor child's health and welfare. Parents who are married when a child is born, are entitled to joint legal custody, absent a court order to the contrary. "
And this reminded me of your situation.