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Sole Legal Custody and my Will

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  • 11-05-2006, 01:56 PM
    nibeard
    Sole Legal Custody and my Will
    I have sole physical and legal custody of my 13 year old daughter (ordered by Nevada in 3/05). Her mother has no contact with her whatsoever (court ordered). I am currently making out a will (just in case). My question is do I have the right to say where my daughter will go if something happens to me?
  • 11-05-2006, 02:23 PM
    Clair Bonner
    Re: Sole Legal Custody and my Will
    Quote:

    Quoting nibeard
    View Post
    I have sole physical and legal custody of my 13 year old daughter (ordered by Nevada in 3/05). Her mother has no contact with her whatsoever (court ordered). I am currently making out a will (just in case). My question is do I have the right to say where my daughter will go if something happens to me?

    Yes, you can place a statement in your Will concerning this matter. However, should you die during your child's minority, the court will first, at that time, make a determination whether the natural mother is willing, fit and able to take over full time custody. If she isn't, then the court will make a determination from the people that have filed a Petition for Custody, regardless of your statement in your Will. If no one files, or if that stated person is not acceptable to the court, and the mother remains unable, unwilling, or remains unfit, then the court will place the child in County custody.
  • 11-05-2006, 02:38 PM
    moburkes
    Re: Sole Legal Custody and my Will
    Yes, you can make that statement. But, you cannot "will" a child.
  • 11-05-2006, 02:50 PM
    jk
    Re: Sole Legal Custody and my Will
    You can establish a standby guardianship that would be of more control than making a desire kinown in a will. Here is a link to thise states that allow standby guardianships.

    http://standbyguardianship.org/national/default.asp

    Barring the guardianship, the others info would be accurate as to what would happen.

    Your current situation (court ordered no contact) would tend to infer the courts have already ruled on the acceptability of the other parent having custody. This would not prevent the other parent from fighting this though in the future. The other parent generally has all rights to custody of thier own child unless it would be unhealthy to do so and nothing you establish can subvert these rights (permanently) as long as the courts do not restrict the other parent from having custody for some reason or consider the other parent to have abandoned the child or other reasons within the germane states laws.
  • 11-05-2006, 03:08 PM
    nibeard
    Re: Sole Legal Custody and my Will
    Quote:

    Quoting Clair Bonner
    View Post
    Yes, you can place a statement in your Will concerning this matter. However, should you die during your child's minority, the court will first, at that time, make a determination whether the natural mother is willing, fit and able to take over full time custody. If she isn't, then the court will make a determination from the people that have filed a Petition for Custody, regardless of your statement in your Will. If no one files, or if that stated person is not acceptable to the court, and the mother remains unable, unwilling, or remains unfit, then the court will place the child in County custody.

    If I have her mother sign a termination of parental rights would that help the issue. I just don't want her returned to her mother by default. My current wife is more than willing to adopt her. My concern then would be that if something happened to both my wife and I would she still by default go to the biological mother? I don't care about getting child support from the Bio Mother, I would gladly pay her to ensure my daughter never has to be with her again.
  • 11-05-2006, 03:14 PM
    moburkes
    Re: Sole Legal Custody and my Will
    Your current wife is a "legal stranger" to your child, and has less rights to your child than the other biological parent.
  • 11-05-2006, 03:18 PM
    jk
    Re: Sole Legal Custody and my Will
    If the courts would accept the termination would be the problem. They often so not like to knowingly leave a child with only one parent and often will not do so, even if both parents agree to it.

    Have you considered having the bio mom terminating rights and step mom adopting the child now rather than waiting until something happens. That would make it so that if something did happen to just you, the child would stay with their mom(your wife). If the both of you would meet your demise, you would still not have to deal with bio mom since she would then be a legal stranger to the child.

    A standby guardianship (if available) would still be approporiate in case the both of you would die before the child reached the age of majority. This would allow you to still help your child, even after your death.
  • 11-05-2006, 03:21 PM
    Clair Bonner
    Re: Sole Legal Custody and my Will
    Quote:

    Quoting nibeard
    View Post
    If I have her mother sign a termination of parental rights would that help the issue. I just don't want her returned to her mother by default. My current wife is more than willing to adopt her. My concern then would be that if something happened to both my wife and I would she still by default go to the biological mother? I don't care about getting child support from the Bio Mother, I would gladly pay her to ensure my daughter never has to be with her again.


    If a termination were possible, either you or the court would have done that a long time ago. I must presume, with this little information, that you'd be hard-pressed to get the biological mother to do this voluntarily.

    Remember, I said, "the court will first, at that time, make a determination whether the natural mother is willing, fit and able to take over full time custody." So, there is a chance that the bio-mother can obtain custody.

    Look, if this is so important to you, then engage the services of a local Family Law and Estate Planning attorney.
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