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by mommytimes2 on January 9th, 2007

mommytimes2

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What happens if the parents with sole physical custody dies? My Ex has Legal custody rights and is NOT part of the her life.we live with my 2nd husband,my daughter from 1st marriage and our son. If i die I want her to stay with her stepfather and brother

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Answers. 7 helpful answers below.

  • by CannedHam on January 9th, 2007

    CannedHam

    If your ex has not terminated parental rights, then your child goes to him upon your death (assuming the child is a minor at the time). Your second husband has no legal claim on your child as he did not adopt her. There may be a chance if your husband can mount a legal challenge based on your ex's past behavior and the existance of a stable home, but that will be after you die and after your child is in your ex's possession for who-knows-how-long.

    Your best bet is to get your ex to terminate parental rights AND get your hubby to adopt your child.

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  • by Anonymous on April 12th, 2007

    Anonymous

    Your current husband needs to have legal custody of the child, which means filing for him to share custody of the child with you. That way, if you die, custody defaults to him and the biological father will have to go through the courts to obtain legal custody of the child.

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  • by Anonymous on April 12th, 2007

    Anonymous

    We had this same question and asked our attorney - since the father is not involved, your husband can immediately go to the courts and file for guardianship, then would have to fight to remove the biological father's parental rights to adopt the child(ren). If your situation is like mine, my ex would not know until after my husband had already filed for guardianship. My ex has a long history of failure to pay support, and at present, has a stay of visitation since he disappeared for 5 years. Since your ex is not involved, it may be wise to get a stay of visitation, that way you have documentation filed with the courts proving he is not involved, therefore it's admissable should your husband have to fight for custody in such case you should pass away.

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  • by doodlebug on April 10th, 2007

    doodlebug

    They will give your ex custody, but your husband now can fight for her.

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  • by mrsstephyg on October 20th, 2010

    mrsstephyg

    Custody would go to your ex unless his parental rights have been terminated. Right or wrong, that's how the law works.

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  • by 3333 on April 9th, 2007

    3333

    My husbands ex-girlfriend tried that with their 7 year old son. She e-mailed him and stated that she was/is having papers drawn up so that if anything should happen to her my step son has a guardian. And that she was putting her husband down as my step son's legal guardian. She told my husband that she doesn't think he deserves his son and that if she has the papers drawn up that her husband will automatically get their son if something should happen to her. But then my husband talked to an attorney and we found out that she was wrong. Once she passes as long as my husbands rights are not terminated he automatically get's his son no matter what she has stated anywhere because her husband is not my step son's blood parent and there was never an adoption.

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  • by mandawanda83 on October 20th, 2010

    mandawanda83

    To go on with with this question. I am in the same boat, kind of. I have two children, both with different dads and I am no single. The first father hardly has anything to do with his daughter and the second father has not seen his son, ever. I am going to be writing a will here soon and if I name my mother guardian of these children, will she have custody? I want my children to live with my mother if I die. What will happen? I have sole custody of both of my children.

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