Can custody be transferred using end of life legal documents?

[cdunn51257]

What is the name of your state? Ohio

Situation:
my father and stepmother gained custody of 2 of my stepmother's sons children. In 2018 there was a situation with a 3rd child in another state (LA) which made my father and stepmother have to adopt 3rd child per custody laws of LA. So in actuality they have custody of the first two and my step niece has become my sister. On Jan 8, 2020 my stepmother passed away. My father now has all 3 children. He is in the process of doing his end of life legal paperwork because sadly they did not have my stepmother's done before she passed away. We assumed that custody can be delegated/assigned through his will, however something that I read last night made me think that it could be contested. He would like me and my husband to gain full custody of all 3 children if they are minors at the time of his death. How can we make sure that this happens so that the children remain together and not get thrown into the system?

 

[FlyingRon]

While a will can state intent, it is up to the court to determine the custody. He definitely should consult an attorney to make such intent clear in the will (and cover all the bases that will give it a good chance of succeeding when it comes up to the court). This would be complicated if the other of the child's real parents are still alive.

 

[LdiJ]

What is the name of your state? Ohio

Situation:
my father and stepmother gained custody of 2 of my stepmother's sons children. In 2018 there was a situation with a 3rd child in another state (LA) which made my father and stepmother have to adopt 3rd child per custody laws of LA. So in actuality they have custody of the first two and my step niece has become my sister. On Jan 8, 2020 my stepmother passed away. My father now has all 3 children. He is in the process of doing his end of life legal paperwork because sadly they did not have my stepmother's done before she passed away. We assumed that custody can be delegated/assigned through his will, however something that I read last night made me think that it could be contested. He would like me and my husband to gain full custody of all 3 children if they are minors at the time of his death. How can we make sure that this happens so that the children remain together and not get thrown into the system?

Your father's will can name someone to become the children's legal guardians but that is not binding upon a family court judge. So yes, it can be challenged. I believe that the general consensus is that a judge would take those wishes pretty seriously though. Also, unless there was something seriously untoward about your background or records, it wouldn't even get challenged unless there was another family member who believed that they were a more suitable guardian. So the children are not likely to end up in the system.

The problem might stem from relatives on the other side of the family for the two children who were not adopted. The biological family of the child that was adopted would not have any rights to challenge custody of that child. You are her legal sister and they no longer have a legal relationship to her.

 

[Just Blue]

What is the name of your state? Ohio

Situation:
my father and stepmother gained custody of 2 of my stepmother's sons children. In 2018 there was a situation with a 3rd child in another state (LA) which made my father and stepmother have to adopt 3rd child per custody laws of LA. So in actuality they have custody of the first two and my step niece has become my sister. On Jan 8, 2020 my stepmother passed away. My father now has all 3 children. He is in the process of doing his end of life legal paperwork because sadly they did not have my stepmother's done before she passed away. We assumed that custody can be delegated/assigned through his will, however something that I read last night made me think that it could be contested. He would like me and my husband to gain full custody of all 3 children if they are minors at the time of his death. How can we make sure that this happens so that the children remain together and not get thrown into the system?

I will tag @Ohiogal who is a site vetted Ohio Attorney/Guardian Ad Litem.