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Who gets custody if custodial parent dies

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skyangel74

Junior Member
What is the name of your state? Florida

I have shared custody, my ex and I were never married, and he does not see our child on a regular basis. I have a will that in the event of an accident or something and I was to die, I would like my daughter to live with my parents. Would this stand up in court and my wishes carried through. It does state that she would continue to maintain what ever visitation that she has with her father. Is there something else I Have to do or can do to insure this arrangement?
 


Halls

Member
No, your will won't stand up in court and if your child's father wants custody than he will likely get it. The only way your child can go to your parents is if the father doesn't want full custody or if he dies as well. Your parents can always attempt at getting custody, but I doubt it will happen if dad wants his child.
 

nextwife

Senior Member
If you die, in the absence of clear unfitness, if Dad seeks custody, he will get it. You cannot "will" your child. Wills are for PROPERTY.
 

rmet4nzkx

Senior Member
Your parents may be named as standby guardians or trustee's but dad would still retain his parental rights and could assume custody and become rep payee under social security etc. only the court can award custody.
 

skyangel74

Junior Member
nextwife said:
If you die, in the absence of clear unfitness, if Dad seeks custody, he will get it. You cannot "will" your child. Wills are for PROPERTY.
I know wills are for PROPERTY, but they are also there to take care of what I value most, WHICH IS MY CHILD. Her father has been in and out of jail and has never maintained a steady relationship with her, My parents have always been there and continue to be there, his family does not have a lot to do with her, which is why I'm trying to be sure of a future for her just incase. What if I have sole custody does that change things?
 

BelizeBreeze

Senior Member
skyangel74 said:
I know wills are for PROPERTY, but they are also there to take care of what I value most, WHICH IS MY CHILD. Her father has been in and out of jail and has never maintained a steady relationship with her, My parents have always been there and continue to be there, his family does not have a lot to do with her, which is why I'm trying to be sure of a future for her just incase. What if I have sole custody does that change things?
no it does not.

As you've been told repeatedly, your ex, the child's father, is the one the child will go to. In fact, if you attempt to dispose of the child through the will, you stand the chance of having the will invalidated completely.
 

nextwife

Senior Member
skyangel74 said:
I know wills are for PROPERTY, but they are also there to take care of what I value most, WHICH IS MY CHILD. Her father has been in and out of jail and has never maintained a steady relationship with her, My parents have always been there and continue to be there, his family does not have a lot to do with her, which is why I'm trying to be sure of a future for her just incase. What if I have sole custody does that change things?

No, you are WRONG. WILLS do NOT have any legal bearing on custody matters. A Stand by Guardianship may provide for immediate determination of custody. I have a child also, but my WANTING a will to be the instrument by which I can provide future placement doesn't make it so. Like it or not, a WILL, is NOT for CUSTODY Matters.
 

rmet4nzkx

Senior Member
skyangel74 said:
I know wills are for PROPERTY, but they are also there to take care of what I value most, WHICH IS MY CHILD. Her father has been in and out of jail and has never maintained a steady relationship with her, My parents have always been there and continue to be there, his family does not have a lot to do with her, which is why I'm trying to be sure of a future for her just incase. What if I have sole custody does that change things?
While you may value your child, she is not property, that is why you may only name your parents as standby duardians or trustees. Just because you have primary custody doesn't mean her relaitonship with her father would not become closer given the opportunity. You picked this man to have a child with, now your child has two parents, not one. A judge will decide.
 
N

nicetryadmin

Guest
skyangel74 said:
I know wills are for PROPERTY, but they are also there to take care of what I value most, WHICH IS MY CHILD.
So if you know that will are for property, then why did you go ahead and put the child in there anyway? :rolleyes:

What if I have sole custody does that change things?
Nope.

It bears asking...why are you even asking this? Are you expecting your life to terminate sometime soon? Also, shouldn't lawyers who do wills KNOW that children should not be placed in wills??
 

Ohiogal

Queen Bee
nicetryadmin said:
So if you know that will are for property, then why did you go ahead and put the child in there anyway? :rolleyes:


Nope.

It bears asking...why are you even asking this? Are you expecting your life to terminate sometime soon? Also, shouldn't lawyers who do wills KNOW that children should not be placed in wills??
Lawyers should KNOW that children cannot be willed. Those that don't are looking at major malpractice. Standby guardians may be named but custody cannot be bestowed by will. Of course too many people try to write their own wills and let that suffice. Based on case law, many lawyers who don't specialize in probate won't attempt to write their own will depending on the complexity of the estate.
 

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