"Attachments" to Will?

What is the name of your state?What is the name of your state? California

I am divorced and the mother of an almost 17 year old daughter. I do not yet have a will because I own practically nothing and until last year, my ex and I co-parented just fine. I had no worries about my daughter after I died - until now...

Last year, after some horrific events, my ex and I modified custody and I now have full legal and full physical custody. The visitation was changed to as agreed to between the child and her father (they haven't seen one another in over a year). He agreed to modify custody due to his being harmful to her (declarations from a psychiatrist and psychologist - plus my daughter's and my declarations are a part of the court record).

Anyway, my question is can I attach those documents to my will, to give more weight to my choosing another person to be my child's guardian for the next year, should I die before she reaches 18? I sure would sleep better if I thought I could prevent her further trauma by making sure he had no say in her life until she was old enough to make legal decisions for herself.

Thanks for your help.

Holly Golightly said:

What is the name of your state?What is the name of your state? California

I am divorced and the mother of an almost 17 year old daughter. I do not yet have a will because I own practically nothing and until last year, my ex and I co-parented just fine. I had no worries about my daughter after I died - until now...

Last year, after some horrific events, my ex and I modified custody and I now have full legal and full physical custody. The visitation was changed to as agreed to between the child and her father (they haven't seen one another in over a year). He agreed to modify custody due to his being harmful to her (declarations from a psychiatrist and psychologist - plus my daughter's and my declarations are a part of the court record).

Anyway, my question is can I attach those documents to my will, to give more weight to my choosing another person to be my child's guardian for the next year, should I die before she reaches 18? I sure would sleep better if I thought I could prevent her further trauma by making sure he had no say in her life until she was old enough to make legal decisions for herself.

Thanks for your help.

Click to expand...

My response:

You can add anything you like to your Will via "Codicil" with Exhibit attachments if you like. But, that doesn't mean it will be legally correct. If the custodial parent dies during the child's minority, the surviving parent immediately becomes entitled to sole custody, unless it is proved by clear and convincing evidence that such custody would not be in the child's best interests and would be detrimental to the child (i.e., Ca Fam § 3041) The full panoply of parental rights reverts to the surviving parent, including the right and responsibility to make all decisions relating to the child's health, education and welfare. [Ca Fam § 3010(b); Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 223 Cal.Rptr. 707; In re Janette H. (1987) 196 Cal.App.3d 1421, 242 Cal.Rptr. 567; Schammel v. Schammel (1894) 105 Cal. 258, 38 P 729]

Therefore, the question of "custody modification" becomes moot with the custodial parent's death: i.e., since there is now only one parent to assert parental rights, the original custody order itself is moot. (This of course assumes that only the parents were parties to the custody order.)

For example, you can state in your Will that, upon your death, you "appoint" Mrs. Jones as your child's "guardian". However, doing so is legally valueless; thus, making such an entry completely pointless.

You cannot "usurp" the jurisdiction of the court with your own wishes with regard to a minor in a Will. The court ALWAYS has the final say - - and that "say" may not be what you want. The court will make the final decision who gets guardianship over your child and, whenever possible, the surviving parent is the one who gains IMMEDIATE guardianship. For any other person, other than a natural parent, to obtain guardianship, a Petition with exceedingly strong reasons with demonstrable evidence must be shown to exclude a parent as being "unfit". This is a HUGE hurdle for any "third party" non-parent to jump.

IAAL

If you own virtually no assets, then a will is not even needed in your situation. You need to talk to a family law attorney about how to put your wishes about her custody in a personal, private document that is NOT a will, and the attorney can best advise you how to achieve what you want.

Thanks IAAL - Guess I'd better keep taking my vitamins and observing traffic laws for the next year...

ETA: Thanks Dandy Don. I will try that as well.

Dandy Don said:

If you own virtually no assets, then a will is not even needed in your situation. You need to talk to a family law attorney about how to put your wishes about her custody in a personal, private document that is NOT a will, and the attorney can best advise you how to achieve what you want.

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My response:

Just when did you become an idiot? What date did that metamorophisis occur?

I gave her current "California" legal advice - - not "Oklahoma" advice, where children are obviously, BY YOUR WAY OF THINKING, treated like television sets and vehicles. What type of document, Dandy, were you thinking about that would allow a deceased parent to "give away" their child to some "legal stranger" over a natural parent?

And, I am a Family Law attorney in California, you idiot - - I'm not a potted plant. You know, sometimes Dandy Dufus, you amaze me with your utter stupidity. Other times, like now, I just want to grab you by the throat and choke you for saying stupid things like you have in this thread.

IAAL