minor children

What is the name of your state? :MT

In the case that something should happen to me, I would like to be able to give custody of my 2 children (ages 8, 6) to my boyfriend. We have discussed this at length, but I don't know how to go about doing this. Do I need a lawyer?? Is their a certain form I fill out? I have sole physical and sole legal custody of the children in question. Any advice would be greatly appreciated. Thank you in advance.


Windy

[I AM ALWAYS LIABLE]

Originally posted by montboss
What is the name of your state? :MT

In the case that something should happen to me, I would like to be able to give custody of my 2 children (ages 8, 6) to my boyfriend. We have discussed this at length, but I don't know how to go about doing this. Do I need a lawyer?? Is their a certain form I fill out? I have sole physical and sole legal custody of the children in question. Any advice would be greatly appreciated. Thank you in advance.


Windy

My response:

Where's the father?

What's his story?

Children cannot be "given" to anyone by you in the event of your demise. The State court has jurisdiction over them and, in the event of your demise, will decide and award custody to a bonifide family member based upon "the best interests" of the children.

If there's a problem with their father, then to some other family member; e.g., brother, sister, your mother, your father, a cousin, an aunt, a grandparent, etc.

A "boyfriend" would be on the bottom of the "choice list" with the court when no other family member is willing or able to take your children. And, even then, the court might decide that "foster care" would be better than a mere "boyfriend."

You would be better off to be married to your boyfriend and start "adoption" proceedings for your boyfriend - - so that in the event of your demise, he'll have "legal standing" to take the children if you die.

IAAL

[nextwife]

Is your boyfriend also the biodad to these kids?

Their father's don't want anything to do with them (their choice, not mine). I have made EVERY effort for my kids to have their father's in their life, to no avail. My father is not in good condition healthwise, and my mother is totally out of the question. I don't have anyone else to leave them with. And they are happy where they are now. is their anyway my boyfriend can adopt my children without us getting married. Don't get me wrong, I love him completely, but both of us have been married before, and the situations completely changed our outlook on marriage. We are very happy together, and I know he would be best for my children instead of a family member. Thank you.

bump... doesn't anyone have any advice???

[gobonas99]

IAAL gave you the best advice possible in your situation - get married to your boyfriend and start the process for him to adopt your children. As far as I know, your boyfriend cannot adopt without the two of your being married.

Without at least a marriage between you and your boyfriend, it is very possible that, in the event of your death, your children would be split up, each going with their respective fathers.

[nailtech]

if you didn't marry your boyfriend, and he didn't adopt your children, trust me, if something would happened to you and the children ended up going to the bio father(s) they would go with a nice SSI check for the father(s) and he/they would accept the children with open arms...

I agree with the other posters, montboss, you and your boyfriend should try to put your previous marital and/or bad relationship experiences behind you, get married and start the adoption proceedings as soon as possible. Otherwise in the event of your death while your children are minors, the biodads could potentially be first in line for your kids and the biodads will have control over your death benefits, unless they are felons. Hopefully, you will live to dandle your great-grandchildren on your wrinkled knees, , but proper planning now, including considering marrying your bf, will take a lot of worry off your mind.

[I AM ALWAYS LIABLE]

Originally posted by cyana
I agree with the other posters, montboss, you and your boyfriend should try to put your previous marital and/or bad relationship experiences behind you, get married and start the adoption proceedings as soon as possible. Otherwise in the event of your death while your children are minors, the biodads could potentially be first in line for your kids and the biodads will have control over your death benefits, unless they are felons. Hopefully, you will live to dandle your great-grandchildren on your wrinkled knees, , but proper planning now, including considering marrying your bf, will take a lot of worry off your mind.

My response:

. . . and, we all know how important it is to "live to dandle" things.

IAAL

IAAL... you have a dirty mind... I LIKE that in a man .

[I AM ALWAYS LIABLE]

[quote]Originally posted by cyana


"IAAL... you have a dirty mind... I LIKE that in a man".

========================================

My response:

I've got even MORE dirty stuff in my "bag" of tricks . . .

Care for a "personal" sample?

IAAL

[withonel]

Maybe this will help...from Quicken Lawyer - on creating a will - don't let others pressure you into a marriage, marriage made much more sense when we died at 30.


Among the most pressing concerns of parents with minor children is who will care for the children if one or both of them die before the children reach 18.

Although contemplating the possibility of your early death can be wrenching, it is important to face up to it and adopt the best contingency plan for the care of your young children. If the other parent is available, then he or she can usually handle the task.
But life is full of possibilities -- some of them rather bleak. You and the other parent might die close together in time. Or you may currently be a single parent, and need to come to terms with what will happen if you do not survive until your children reach age 18.

This section discusses using Quicken Lawyer to choose a personal guardian to care for the children's basic health, education and other daily needs. Choosing a person to manage your children's property is discussed in Chapter 7.

1. Reasons for Naming a Personal Guardian

The general legal rule is that if there are two parents willing and able to care for the children, and one dies, the other will take over physical custody and responsibility for caring for the child. In many states, the surviving parent may also be given authority by a court to manage any property the deceased parent left to the children -- unless the deceased parent has specified a different property management arrangement in a will.

But there is no ready fallback plan if both parents of a minor child die, or in the case of a single parent, there is not another parent able or willing to do the job. Using Quicken Lawyer, you can cover these concerns by naming a personal guardian and an alternate. The person you name will normally be appointed by the court to act as a surrogate parent for your minor children if:

there is no surviving natural or adoptive parent able to properly care for the children, and
the court agrees that your choice is in the best interests of the children.

If both parents are making wills, they should name the same person as guardian for each child. This will help avoid the possibility of a dispute and perhaps even a court battle should the parents die simultaneously. But remember, if one spouse dies, the other will usually assume custody and will then be free to make a new will naming a different personal guardian if he or she wishes. In short, in a family where both parents are active caretakers, the personal guardian named in a will cares for the children only if both parents die at the same time or close together.

However, if you feel strongly that the other person is not the best person to care for the children, be sure to explain your reasoning when the Quicken Lawyer program prompts you to do so. (See Section H4.)


Choosing a Personal Guardian

To qualify as a personal guardian, your choice must be an adult -- 18 in most states -- and competent to do the job. For obvious reasons, you should first consider an adult with whom the child already has a close relationship -- a stepparent, grandparent, aunt or uncle, older sibling, babysitter, close friend of the family or even a neighbor. Whomever you choose, be sure that person is mature, good-hearted and willing and able to assume the responsibility.

Choosing an Alternate Personal Guardian

The considerations involved in naming an alternate personal guardian are the same as those you pondered when making your first choice: maturity, a good heart, familiarity with the children and willingness to serve.

Explaining Your Choice

Leaving a written explanation of why you made a particular choice for a personal guardian may be especially important if you are separated or divorced. You may have strong ideas about why the child's other parent, or perhaps a grandparent, should not have custody of your minor children. In an age when many parents live separately, the following predicaments are sadly common:

"I have custody of my three children. I don't want my ex-husband, who I believe is emotionally destructive, to get custody of our children if I die. Can I choose a guardian to serve instead of him?"
"I have legal custody of my daughter and I've remarried. My present wife is a much better mother to my daughter than my ex-wife, who never cared for her properly. What can I do to make sure my present wife gets custody if I die?"
"I live with a man who's been a good parent to my children for six years. My father doesn't like the fact that we aren't married and may well try to get custody of the kids if I die. What can I do to see that my partner gets custody?"

There is no definitive answer to these questions. If you die while the child is still a minor and the other parent disputes your choice in court, the judge will likely grant custody to the other natural parent, unless that parent:

has legally abandoned the child by not providing for or visiting the child for an extended period, or
is clearly unfit as a parent.

EXAMPLE: Susan and Fred, an unmarried couple, have two minor children. Although Susan loves Fred, she does not think he is capable of raising the children on his own. She uses Quicken Lawyer to name her mother, Elinor, as guardian. If Susan dies, Fred, as the children's natural parent, will be given first priority as personal guardian over Elinor, despite Susan's will, assuming the court finds he is willing and able to care for the children. However, if the court finds that Fred should not be personal guardian, Elinor would get the nod, assuming she was fit.

TIPS ON WHAT TO INCLUDE

When deciding who should become a child's personal guardian, the courts of all states are required to act in the child's best interests. In making this determination, the courts commonly consider a number of facts, which you might want to include when explaining your choice for personal guardian. They include:

whom the parents nominated to become the personal guardian
whether the proposed personal guardian will provide the greatest stability and continuity of care for the child
which person will best be able to meet the child's needs, whatever these happen to be
the quality of the relationship between the child and the adults being considered for guardian
the child's preferences to the extent these can be gleaned, and

the moral fitness and conduct of the proposed guardians.



It is usually difficult to prove that a parent is unfit, absent serious and obvious problems such as chronic drug or alcohol abuse, mental illness or a history of child abuse. The fact that you do not like or respect the other parent is never enough, by itself, for a court to deny custody to him or her.
But if you honestly believe the other natural parent is incapable of caring for your children properly -- or simply will not assume the responsibility -- you should reinforce that belief by explaining why you elected to name other people as guardians and alternates.

EXAMPLE: Justine and Paul live together with Justine's minor children from an earlier marriage. The natural father is out of the picture, but Justine fears that her mother, Tamira, who does not approve of unmarried couples living together, will try to get custody of the kids if something happens to her. Justine wants Paul to have custody because he knows the children well and loves them. She can use Quicken Lawyer to name Paul as personal guardian and add a statement making the reasons for this choice clear.

If Justine dies and Tamira goes to court to get custody, the fact that Justine named Paul will give him an advantage. If he is a good parent, he is likely to get custody in most states.

Quicken Lawyer Copyright (c) 2002, Nolo

[stealth2]

The thing to remember, montboss, is that children are not puppies - you can't "give" them to someone. If you want to ensure that the children will stay with your boyfriend should you die, then you need to get married and start adoption proceedings.

Agreed, momma_tiger. With all due respect, withonel, montboss can check out your recommendation, you have obviously put much careful thought into montboss's plight, and I'm sure she appreciates it, Quicken Lawyer may not be good enough for her to be a "guinea pig". Do you have hard data to back your assertion up that it would be successful? (Sorry, I *was* a scientist.) Would documents created using Quicken Lawyer be legally recognized in her state? I don't mean to challenge you ... maybe it would work.

And to IAAL, gee, I'd like to take you up on your offer... but don't wish to trip over your other "free advice" girlfriends, nailtech and VeronicaGia. Huge . Love ya.

[nailtech]

you can not will a child to anyone... the biofather has priority.. now if the biofather was dead then yeah it might work..... but as she stated he's not... the child will go to the biofather if something were to happen to you (god forbid)...