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Visitation issues after death of a party to divorce

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maray11

Junior Member
:) What is the name of your state? California

My brother and his wife were going through a divorce. She was suffering from ill health for years. My brother had primary physical custody of the 2 children ages 3 and 7. My brother had a very acrimonious relationship with his ex-wife's family. Yesterday the wife died unexpectedly in the hospital. The divorce was not final. What happens to the divorce and the pending custody issues? The family is demanding that my brother allow them to see the children for weekend visits--something my brother doesn't want to do. He is afraid of child snatching.
What are the family's rights to the children? Can they demand visitation under grand parents rights? The family has custody (nothing on paper--the boy is just living with them -- he is about 15 or 16) of the ex-wife's son from a previous relationshhip. He is a half brother to my brother's 2 kids. Can the half brother demand visitation under sibling's rights? Would they get it if they do demand it? There may be a malpractice suit regarding the death of his ex-wife--who can sue? Can the parents or my brother on behalf of the kids?
 


tigger22472

Senior Member
Since the mother has died Dad automatically gains full custody and it's as if the divorce was never an issue. Simply put legally he is a widow. The grandparents can not DEMAND anything... ok.. they can demand all they want but LEGALLY they aren't intitled to any visitation unless dad says ok or until a judge tells dad he has to allow it. In order for that to happen the grandparents would have to file suit in court for that. Will they get it? MAYBE.. and that's because their child who was the other parent is passed but no one can say for sure. As far as the half brother he does not and will not have visitation rights.
 
K

krispenstpeter

Guest
There may be a malpractice suit regarding the death of his ex-wife--who can sue?
The children either separately or together and the widow can all sue for malpractice, however, the court will likely join all actions into one.

And as Tig so eloquently put it, the grandparents and/or the half brother have no legal rights to visitation.

I would caution the father however, to keep the door open to the half-brother.
 

maray11

Junior Member
Custody after death of natural mother

Here's another issue, he is a poor role model, had (and may still have) drug problems, was homeless at one point and currently doesn't have a steady job. My husband and I guess that he would be more than willing to let us raise the kids. If this is the case, I would not want just guardianship, because then he could hook up with some floozy and take off with the kids. If he wants us to take over caring for the kids, what type of custody should I seek? Should I seek that he terminate all parental rights and that I adopt them? What are the chances that my husband and I will win? If he changes his mind later after relinquishing parental rights, what are our recourses?
 

tigger22472

Senior Member
Was he homeless because she was living in the house and how did he have custody if he was homeless?

What you need to keep in mind is that anything that his wife was going for in the divorce doesn't matter and is now HIS... so in essence he's lost nothing other then his wife.... it's as if he got his divorce and he literally got everything so he has resources. Hope that made sense.

As far as the TPR and such I think you're jumping the gun. If he were to fight it you have nothing because obviously a judge felt the need to give him custody already once. You're jumping from issue to issue here.
 

maray11

Junior Member
They were both on drug addicts at one point. At the time of the divorce, neither one of them wanted to bring that point up and accuse each other. Since he was living with me and she was with her parents, homelessness wasn't an issue at that point. My brother is the type to pass the buck and do his own thing. He has mentioned that he would move out and leave the kids with us. At this point we are doing everything for the kids. Feed them, take care of them, take them to and from school etc... That is why if the subject comes up again of him going on his own way and leaving the kids with us, I would want some sort of custody arrangement. I wouldn't want to be raising the kids and he show up out of the blue and say, "I'll take them back now." He has done that before when he was married.
If approaches us and says that he wants us to take over caring for the kids, what type of custody should I seek? Should I seek that he terminate all parental rights and that I adopt them? What are the chances that my husband and I will win? If he changes his mind later after relinquishing parental rights, what are our recourses?
 

tigger22472

Senior Member
If he fights you obtaining any kind of legal custody then the odds of you winning at least right away are slim to none. No one can tell you for sure what a judge will do but more then likely he will be given a shot to better himself. If he willing gives up his rights then that's different but if he's gone back and forth in the past then more then likely he's not going to willing terminate his rights. He has been a part of the children's lives. The most you MIGHT get is just simple guardianship.
 

maray11

Junior Member
I don't think he';fight me if willingly wants to let me raise the kids. He's the one that approached me about this. What I am afraid of is that if he leaves, then comes back years later and says well, I'm back--then he's back for a spell then leaves again. That is what I want to avoid. He is kind of flaky like that. Emotionally for me, I can't handle that if I raise them for a spell then he comes and takes them back then gives them back to me then leaves again.
He is involved to the point when things are fun--when things get hard and he has to parent, he passes the buck to me and my husband. I want him to get his act together but I just don't see it happening. We want him to get his own place because his lifestyle just doesn't suit me and we are just too different. He has been in my house for 6 months and I am soooo ready for him to go, but I worry about the kids so I just suck it up and deal with his BS.
 

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