Iroc_24 said:
I'm a 25 year old mother of 2 children by differant men living in the state of Kansas. I recently underwent near kidney failure due to my diabetes. This has caused me to seriously undertake the writting in a last will & testament to make sure that my children are cared for. I would prefer that my fiance' have coustody of my children if he chooses to take on the responsability at the time of my death. Paternity has been established for my son & his father, and his father has agreed to the terms as explained to him by me. He wishes only that our son is well provided for as he his unable to do so himself & won't be able to for quite some time. My daughter's father takes almost no responiability for his daughter, there has been no paternity verifacation, his name isn't even on the birth certificate. Although he know's that the child is his daughter, there is no legal verifacation there for as far as I know according to state law he has no legal right's to her. I know he will try to contest the will as I have set it up. He is in no way a fit parent and cannot take care of himself let alone a child. He also has a past history of substance abuse. What steps can I take to make sure that my daught does not end up in his care should he try to contest my will and gain coustody?
My response:
The Constitution of the United States, State law, and case law, will not allow the "giving away" of your children by way of your Will.
In effect, what you are trying to do, is to take these fathers' rights away from them via your will, your desire, your decision. It doesn't work that way. The court now, and always will, have jurisdiction over these children until they are 18 years of age. You cannot take jurisdiction away from the courts by a mere writing.
Therefore, you could write anything you want in your Will, and it will be void and voidable "ab initio" (void from the start).
The only way to divest these fathers from their children, and to abrogate their rights to parentage, is to have them voluntarily sign away their rights to their children, or to have a court remove their rights to parentage involuntarily. Before granting custody to a nonparent without the parents’ consent, the court must find both that granting custody to a parent would be detrimental to the child, and that the award to a nonparent is necessary to serve the child’s best interest.
In either case, there must be another adult willing to adopt these children. As it stands right now, today, your fiance (or eventually, your husband) has absolutely no right to take these children upon your death. The court must make an order to that effect.
Without court orders to the contrary, when you die, these children will immediately be turned over to their respective fathers. That's it.
IAAL
[Edited by I AM ALWAYS LIABLE on 04-03-2001 at 01:16 PM]
