My husband's ex-wife is in the hospital and the outlook is not good that she will make it. He was told previously by the ex-wife that she had drawn up some type of will that in the case of her death, the child that they have together (10 years old) would have to go and live with her cousin. My husband was not in agreement because he wants custody of his child if this happens. The mother lives in another state and has full custody right now and basically told him there was nothing he could do about it. My husband doesn't have a visitation order but he and the ex have agreed to him visiting with her several times. The last time was this summer and the child stayed with us for two weeks. He also has frequent phone conversations with her. Is the mother's will legally binding? Is it possible to will a human being like property?
2006-08-19 02:36:33 · 10 answers · asked by Bean 2 in Politics & Government ➔ Law & Ethics
A will is a declaration of intent, and disposes of property. A child is not property.
While the mother's will might be considered when custody determinations are made, there is a PRESUMPTION in favor of the child, which is very difficult to overcome. Indeed, in most states, the father would have to be found "unfit" in order to not be given custody of the child.
The question is not who would be a "better" parent. The question is whether the natural parent is so bad that his parental rights should be terminated.
Even if the father has had difficulties in the past, the father will usually be given custody (but the matter would then be transferred to family court to ensure that social services follows the case to ensure that the well-being of the child is being protected).
Good luck
2006-08-19 07:01:23 · answer #1 · answered by robert_dod 6 · 0⤊ 0⤋
Parental rights come first. Now, the ex-wife can state in her will whatever she pleases...that doesn't mean it is legally binding. I would imagine that she also appointed this cousin as executor and trustee of her estate to support her child after her death, especially if the father has not provided. Why would this woman not want her child to live with their paternal father after her death? Whatever the reason...Parental rights come first unless the "courts" decide differently.
2006-08-19 02:55:07 · answer #2 · answered by vintage_davinci 2 · 0⤊ 0⤋
I think not. The child's surviving natural parent usually is given the right of guardianship unless the courts finds reasons that the surviving parent is not fit to care for or can endanger the child.
We went through the exact thing in our family. My sister divorced her husband because he turned gay after my nephew was born. Then she died a nine years later and entrusted another sister to care for the child. We had wills drawn up well before her death. She did not want her gay husband to raise her son. We had trusts set up to care for my nephew's education. Nothing was left unattended. We even raised the kid out of the country for several years. One day when he was back to the US to visit his mother's grave, the authority seized him and returned him to his father even if they were pretty much strangers by then.
The net result of this tug of war was that the child was emotionally messed up for a few years not to mention the stress for both families. In retrospect, no body wins in child custody battles. I think you should seek legal advise. More importantly, look first at what is good for the child instead of you and your husband. Out of love for them, we sometimes unknowingly tum them into victims.
2006-08-19 03:10:45 · answer #3 · answered by Anonymous · 0⤊ 0⤋
The father is the legal guardian. The question is, Is your husband the father of the boy? He needs to prove paternity by DNA. Do not worry if he is the father, he will get custody of the boy.
2006-08-19 02:46:56 · answer #4 · answered by edla 1 · 0⤊ 0⤋
A will is never infallible. Anyone can still choose to fight it. Especially since we're talking about a CHILD here, and not "just" money, I think your husband should definitely get a lawyer and fight. I would think there are laws about what happens in this scenario that could easily supercede the will.
2006-08-19 02:44:35 · answer #5 · answered by Kiki 6 · 0⤊ 0⤋
in the experience that they are more beneficial than 2d cousins then the newborn should be ok. in the experience that they are 1st cousins then the newborn may have extraordinary actual positive houses. watch the action picture incorrect turn. the undesirable people interior the action picture are insest and in incorrect turn 2 the brother and sister are genuinely seen having sex. i'm particular in case you searched on the internet you may want to locate photos of people that were born from an insest relations.
2016-11-05 04:06:03 · answer #6 · answered by saturnio 4 · 0⤊ 0⤋
No, she can not over the power of the father.
She can list it, but children are not property to be willed.
So unless he has given up all of his rights, he will get custody if she dies automaticly
2006-08-19 04:44:09 · answer #7 · answered by Anonymous · 0⤊ 0⤋
No, the Father is still the legal guardian
2006-08-19 02:40:24 · answer #8 · answered by thomas p 5 · 0⤊ 0⤋
You cant will a child, its not property. thats simple
2006-08-19 03:07:40 · answer #9 · answered by Anonymous · 0⤊ 0⤋
Possible if father is drunkard or unfit
2006-08-19 02:42:56 · answer #10 · answered by unisoul 4 · 0⤊ 0⤋