custody of step children in the event of death of custodial parent?

[curiousstepdad]

I guess my question is, if my wife dies will I have any rights to my two step daughters? Here is some background of her former husband and family. Her "X" lives with his mommy (he's 41) and has admitted that he will never leave. He has given up all but 4 hours a week visitation and has no overnights (it's too much trouble to feed them and keep beds for them). I have never met my wifes mother or father even though they live only 10 miles from us. From what I have heard about them, they would make the mother in "Mommy Dearest" look like a saint. To finish out, the girls are 11 and 13, they have lived with me for 8 years and I live in Wisconsin. Thanx to all who reply!

 

[Shannon&Fuad]

Contact an attorney and request a free consultation.
During the consultation ask if there are any documents that the mother can sign stating that if she were to pass away then you shall receive full custody of the children. Shannon&Fuad

 

[I AM ALWAYS LIABLE]

Contact an attorney and request a free consultation.
During the consultation ask if there are any documents that the mother can sign stating that if she were to pass away then you shall receive full custody of the children. Shannon&Fuad

My response:

Shannon is not only wrong, but is giving you, the stepparent, false hopes. There are no "documents" e.g., a Will, or anything else that your wife could sign that would ever give you "custody" of the children.

Unless there is a real issue of "unfitness" of the father, it would have to be dealt with now, while your wife is alive, and then any decision in those regards would have to be favorable to your wife. However, there is absolutely NOTHING in your post which would even "approach" unfitness of the father.

In the event of your wife's death, the best you could possibly hope for is "Third Party" visitation rights, and the same must be in line with the holding and decision of the recent U.S. Supreme Court decision in Troxel vs. Granville. Therefore, you must be the one to Petition the court for such rights, which would be based upon the best interests of those children and their longstanding relationship with you.

Therefore, in the absence of a legally congnizable reason of unfitness, the surviving parent will ALWAYS gain immediate custody of minor children. This issue is one of Constitutional proportion, and cannot be "swept under the rug" or "disregarded" by merely having your wife sign some sort of "document." Any such decision DOES NOT belong to your wife - - that decision belongs to a court, taking in the totality of the dynamics of all parties and the familial situation, all culminating in the best interests of the children.

IAAL

 

[Shannon&Fuad]

I AM ALWAYS LIABLE,
I really wonder how much you are payed for rudeness?
I myself am not a parent and I was only suggesting this person to contact an attorney for more accurate and helpful advice.
So I would really appreciate it if you would BACK OFF!

 

[I AM ALWAYS LIABLE]

My response:

No, I won't "back off."

You're the one who said:

". . . ask if there are any documents that the mother can sign stating that if she were to pass away then you shall receive full custody of the children."

If you wish to equate "rudeness" with telling you that you are wrong, and wrong for even "suggesting" a false hope, then I'll be on your tail, and stick to you like a fly on flypaper.

I will not put up with ignorance from anyone - - and I will always make corrections where corrections are due and needed. No one has "payed" (paid) me to be rude. I'm trained, however, to be as accurate as possible; and, if that means "shooting you down," I'll do it every time.

You gave this writer a "false hope" when you made that ridiculous suggestion, without any thought of the Constitutional implications of what he was asking, or of what you were saying. You can't take away a surviving parent's "RIGHTS" with a piece of paper, like a Will, without "Due Process of Law." When it comes to parental rights, you always need a court's approval and order.

So, in summary, if you don't know what you're talking about, then please stay off the boards !

How's that for "rudeness"?

IAAL

 

[Shannon&Fuad]

Thank you for your opinion, I will take that into consideration!

 

[Illinois Dad]

This is one of those situations where I would probably best serve myself by staying out of it, but I am compelled to enter this little fray. I have read and re-read Shannon and Fuad's reply to the original message and I must say that I saw nothing that, were I the original poster, would give me false hope. I think it was a well intentioned, if misguided, attempt at giving the original poster some thoughts as to how he might find the answer...I don't think it was inteneded to BE the answer.

It should be quite obvious to anyone who reads these boards with any regularity that IAAL is a very intelligent, well educated, well trained attorney. If I were involved in litigation it is a mind like this that I would want fighting for me. I think, however, that you may want to remember that not all of us are fortunate enough to have your talents. Maybe the only assistance some of us are able to offer to others is in helping them find the resources that will ultimately answer their questions. That doesn't mean that we should be degraded or belittled for our attempts.

I am certainly no attorney, and therefore choose to limit the responses that I post here. I usually feel that I have nothing to offer from the standpoint of practical application of law. But as I understand it the First Amendment to the Constitution guarantees my right to expression. That doesn't mean I have to be right. It doesn't mean I have the right to express an opinion only if it is in agreement with any specific person. It doesn't even mean that I have to make sense (which is a good thing, because I often don't). It allows me my opinion, and it offers others such as IAAL and Shannon the freedom to have theirs. No, that will never stop some people of intellectual superiority from using their "gift" as a means of self-validation at the expense of the dignity of others, but it is still the right of all to hear and be heard.

Finally, I would like to say to IAAL and the many other learned people that post here with regularity that I appreciate the "educational information" (stipulating to IAAL's disclaimer) that you offer. You have all, no doubt, given tens of thousands of dollars worth of free information and I, for one, appreciate it. I will keep reading and becoming educated and will occassionally stick my two cents in.

Thank you.

 

[curiousstepdad]

thank you all for your input

I would like to thank you all for your input. Since I posted my first question, I had another point of view offered to me. This person pointed out that if my wife were to have a will and stated that she wanted the girls to stay with me, then listed the reasons why she didn't want them to go with previously mentioned people. That I would have a good chance of contesting thier placement. He also added that with the girls at the ages that they are they would have more of a say in where they were going to live. And finally, as around about as you can get... if the girls put up enough of a fight they would end up in foster care (not good), but I could become the foster parent. Not real sure about the legalities of it... but it's a different perspective on it.
Once again, thank you all for your input!

 

[tigger22472]

curiousstepdad, You may want to try what I've done. I realize that as step-parents we have no rights. My boyfriend and I have been together for over 2 years and although we don't plan to marry(been there done that) if something were to happen to me the thought of my ex getting my children scares me to death. I have full confidence that my family would fight to keep my children(heck part of my ex's family would too) for their father is unfit. I have put on disk... knowing it's not legally bounding but for now will do that if they fight for custody which I know they will do that they will turn that custody or guardianship over to my boyfriend who raises them and has been better to them then their father ever has been. They have a stable life here. If your wife has someone in her family that could fight the bio-parent it might work. I will state however so I"m not bashed that I'm certain this would work but to me it's worth the effort.

 

[Shannon&Fuad]

I agree 100% with what Illinois Dad said!
Thank you Illinois Dad!
Shannon

 

[Illinois Dad]

Well once again, I will mention that I am not an attorney, but common sense is telling me that this new bit of strategy you received won't result in much more for you than a long and losing court battle and astronomical attorney costs...all while you would be grieving the loss of your wife. Not to mention the turmoil you would be putting your step daughters through in having to fight this court battle while mourning their mother.

Putting these statements in her will would do little more than let the courts know that your wife doesn't like her ex and that she doesn't feel he is a suitable parent. Well guess what...if those things weren't true she would still be married to him. If this is a matter of constitutional proportions, as IAAL has mentioned, your wife's will is not going to change the courts decision making process. As for the idea of having the kids put into foster care with you as the foster parent, I don't know how that would work but with a bio parent who has not been proven unfit that is willing to take the children what motivation would the court have to place them in foster care?

Again, others can speak more intelligently as to the legalities here, but think of what this would do to your step children as well as the memory of your wife. It would likely be viewed and remembered as a post mortum spiteful, vengeful act against her ex. Don't make these children remember their mother that way.

Thanks for listening to my opinions.

 

[haiku]

This is really a 'cross that bridge when you come ot it" situation.

I have pretty much accepted the fact that if something were to god forbid happen to my husband, while his kids were to young to drive and make thier own decisions, i would probably not ever see them again, as the kids have no other relations on his side but me, and his ex and i do not get along.


Unfit parents need to be taken care of while the fit parent is still alive.

i had done what Tigger has done, putting the little note in my will, wanting my at the time fiance to continue to be involved in my daughters life, and that if he couldnt have her that she live with my mom, instead of my ex. i knew then that my ex was not going to live up to his responsibilities as a parent, so deep inside I never expected him even with out that note in my will to show up and whisk my kid off into the sunset, never to be seen again by anyone. (and i was right-he gave up his rights within a year of her birth.)

but in cases where the actual parent is still around, even in a capacity the other parent considers lacking, they are still the parent of this child, and it is not the other parents right to judge really anymore once they already have that child together. I think my husbands ex is a total jerk, so does he, but that point is moot being as at one time my husband thought enough of her to have kids with her, they both have a right to raise them as they see fit, and if my husband is suddenly out of the picture, well it does fall back on her to do as she wants.

it would be wise then after such a horrible catastrophe, as the step parent to try to calmly offer whatever help and support you can to the child and the parent. This is all you can really do at any time. And accept that it is really out of your hands.