have a hypothetical ? IAAL?

[usmcfamily]

Okay.....it has been a while since I have had a ? to post but after talking with my sister this weekend I have been wondering about something. My husband and I are named in their (sister and b-i-l)will as whom they wish the children to go to in the event of their death - this is becoming a more pressing issue in my mind due to the fact that my sister is ill and my b-i-l has just found out he has orders to the front lines of the war. While I am sure that I am worrying for naught I was curious as to what would be the procedure legally if something did happen to them -- would we need to file for custody of their three children or would their will circumvent that necessity? I only ask because whatever the case we would need to have it resolved as quickly as possible so that we could make the proper adjustments here to qualify for larger quarters, etc and to be able to enroll them in school etc...as they are currently stationed in TN and we are in NC which would obviously mean a move for the children. Also, his mother has said several times that she fully intends to raise their kids if this situation ever came to be --that is exactly why my sister/b-i-l have expressed their wishes to the contrary in the will......if the grandmother chose to fight for custody of the kids what would be her chances considering the parent's expressed wishes in the will that she NOT have them?
Again -- this is all hypothetical but I have enough forsight to know I won't be together enough to think this all through should the situation ever come to pass and so would like to have the info ahead of time......
Thank you

 

[I AM ALWAYS LIABLE]

Okay.....it has been a while since I have had a ? to post but after talking with my sister this weekend I have been wondering about something. My husband and I are named in their (sister and b-i-l)will as whom they wish the children to go to in the event of their death - this is becoming a more pressing issue in my mind due to the fact that my sister is ill and my b-i-l has just found out he has orders to the front lines of the war. While I am sure that I am worrying for naught I was curious as to what would be the procedure legally if something did happen to them -- would we need to file for custody of their three children or would their will circumvent that necessity? I only ask because whatever the case we would need to have it resolved as quickly as possible so that we could make the proper adjustments here to qualify for larger quarters, etc and to be able to enroll them in school etc...as they are currently stationed in TN and we are in NC which would obviously mean a move for the children. Also, his mother has said several times that she fully intends to raise their kids if this situation ever came to be --that is exactly why my sister/b-i-l have expressed their wishes to the contrary in the will......if the grandmother chose to fight for custody of the kids what would be her chances considering the parent's expressed wishes in the will that she NOT have them?
Again -- this is all hypothetical but I have enough forsight to know I won't be together enough to think this all through should the situation ever come to pass and so would like to have the info ahead of time......
Thank you

My response:

A Will is not going to accomplish this task. Upon their death, you would be embroiled in a "Will Contest" the likes of which you've never imagined. Additionally, the childrens' home State would not allow it via Will under the Home State Rule in the UCCJA because jurisdiction would automatically stay with the State where the children are domiciled and, as such, would not allow them to move to your State when there are family members in the Home State who are willing to care for the children.

Therefore, the time to act is now. I would counsel my client (your sister and BIL) to file a Petition (right now) for both Guardianship and Conservatorship to be in your favor, immediately. That way, the parents keep the children while alive, but when both parents do, in fact, pass from this life, you can immediately take custody of the children - - all you'd have to do is "wave" those papers in Granny's face, put the kids in your car, and head back to your State.

Good luck to you.

IAAL

 

[kristine51]

Thank You usmcfamily for the hypothetical ??? and a big THANK YOU to IAAL for the response. Now hubby and I know how to keep the kids from ending up in the psycho's care should something ever happen to him. He already had it put in his will that he wanted his mother and myself to care for the children in the event of his death but now we will look into filing for guardianship and conservatorship to back up his will.

Thank you both soooo much.

 

[tigger22472]

I think that is only if BOTH parents are passed.. I don't think you can give guardianship to someone else if the other parent doesn't agree or is alive.

 

[I AM ALWAYS LIABLE]

I think that is only if BOTH parents are passed.. I don't think you can give guardianship to someone else if the other parent doesn't agree or is alive.

My response:

Wrong, yes you can. And when did you practice Family Law for the past 22 years?

If you re-read the original post, you'll see that the mother and husband have this wish in their Wills. Apparently, they are BOTH in agreement. The only question was whether placing something like this in a Will is going to accomplish the goal. And, the answer to that is no. You can't "Will" a child to someone else. Children are not "chattel", like your television set or your car. Courts take a very dim view of children being "bequeathed" in a Will - - and as a matter fact, it's not allowed.

A court will take custody of an orphaned child, and make a decision based upon the best interests of the child as to who that child goes to live with.

IAAL

 

[tigger22472]

now now now.. settle down sweetie.. i was making that comment to Kristine51. I realize the original poster said if both parents passed away... CHILL!!!! I'm not sure Kristine meant with both parents passed...

 

[usmcfamily]

IAAL....
I didn't think that children were property but the wills that military members complete through the legal department (required here before they can deploy) there is a section specifically addressing guardianship of the children in the even of the death of the serviceman if not survived by a spouse. There is a line that reads "No guardian shall be required to file or furnish any bond, surety or other security in any jurisdiction" .....what does that mean? I am curious now because this is the same will that we have for my husband and I want to be able to leave more specific instructions with the guardian we have chosen as to how they need to proceed in the event that my husband and I have passed.
Also ... on the first ? -- the grandmother that wants the kids is in yet another state than either myself or the children in question. So I am not sure how much of what you posted regarding the idea that she was in the state with them still applies......
I am sorry to bother you with hypotheticals when things are so busy here but I am concerned now too about my own children since we have the same will.......

 

[I AM ALWAYS LIABLE]

Dear USMCFAMILY - -

CRAP !

I spent a half hour or more on a lengthy disertation concerning your above post . . . and when I clicked on "Submit" something happened and my reply VANISHED ! ! Damn it !

I hate when that happens.

However, it ended with "seek the advice of a local attorney" for your specific needs in this situation.

I'm really sorry about that, but I'm not going to try to recompile the pages of information - - I'm too pissed off right now, and I'm stewing and fuming about what happened !

IAAL

 

[usmcfamily]

IAAL~~
Thanks anyway -- I had that happen to me the other night and I got so frustrated by it I turned off my computer.....I HATE that...lol.
Thank you for your advice and insight -- it is always most welcome.....

 

[smh33]

usmcfamily...just moving this back to top. It is great question....after reading thought of 2 friends that could be in same type scenerio this year.....they presumed the 'will' would stand...as was parents wishes. I would have thought same....wonder how this applies not with wills but, in case of 'godparents'...same thing maybe? Best wishes and prayers for your BIL.....hailing from Paris Island myself, always proud & thankful for those that protect us. God Bless.

 

[kristine51]

oooook, so it won't work in our situation if the BM is still alive.
if my hubby were to pass away would i have a legal chance at custody due to the best interests of the children???
i know you don't have all the info to work with but i have been "in loco parentis" for over 16 months in the state of arizona, bm has never supported her children financially.
guess what i'm really asking is would a judge consider a stable, familiar environment with a "stepparent" over an unstable and completely foriegn environment of a bioparent?
don't rush to answer... i plan on hubby being here for awhile

 

[Zarax]

Hmmmm.... One of my worst fears is that if something happend to me that my daughter would go to her biodad. I live in FL and when my daughter was 3 mos old I made out a will so that she would go to my "adopted" parents. Her father and I were never married. His name isn't on the birth certificate. He lives in the same town and hasn't seen her or made any attempt to see her in over 5 yrs. Does he still have rights?

 

[usmcfamily]

SMH33 -- OOHRAH!!! Nice to see another of "the proud" around....lol......my hubby is the Marine in the family and my BIL is ARMY Airborne/SF (crazy man!lol)........
Anyway...thanks for the prayers.....every one helps!