If I die, does my son's father automatically get custody?

Question

I live in Ohio. I made a power of attorney for my son should he be hurt that my parents and my brother can autorize medical treatment. I also made a notorized statement that I wish for my brother to be his guardian should I die. His father was incarcerated when these were made and got out 2 years ago (tomarrow huhh imagine that opps sorry) any way he and his family have made little to no effort to visit or call him. In fact not once since they were in the 4th of July parade last year and saw us on the parade route. They know where I live, my phone number and I have never said they could'nt visit or call. I do have a record of every contact no matter who initiated it saved on my computer just in case. I doubt they would try for custody but you never know. Is my notorized statement enough? I did give this info to an aquintance who works in a law office but she hasnt got back with me.

Isabella, there is not hate, at least to as far as I'm concerned.
They are just too busy I guess. I have an open door for them should them make the time and they know that. They choose not to be involved, I'm not forcing anyone to love my child, you either you do or you don't, I can't make them want to see him.

elau blue
He doesnt pay support now. He works under the table, when he works.
I don't want to start something trying to get his rights revoked. He might confuse my son by popping in and they just disappear again. I will be looking into it though

Answer 1

The father has parental rights unless he gives them up. You cant "will" away custody and/or guardianship. Sorry, but dad has a right to custody should you die. And it is ahead of anyone else in your family. A custody battle between your ex and your family could be a nightmare for the kid. Probably the strongest factor in your favor is your ex's criminal record. But if the Court finds that he is a suitable parent, he will more than likely win custody.

EDIT: Child custody is always under the jurisdiction of Family Court. See the Uniform Child Protection Act. The Court retains jurisdiction until the child is 18 and will retain a Guardian Ad Litem (during court proceedings) to protect the best interests of the CHILD. Parents wishes, while probative, do not dictate the outcome. If the natural father is fit, any other party would have an extremely difficult time cutting off his parental rights.

FOR HEXI

Ok. I should have said "the court that handles family matters."

Answer 2

O.K. let's try this again.

First, a will is for the purpose of disposing of property. Children are not property. Therefore, a will disposing of the custody of a child is invalid.

You also cannot sign a 'notorized' statment which usurps the authority of the court. Therefore, any such document you sign to award custody of the child is also invalid on it's face.

The ONLY way any person other than the legal father can obtain custody (temporarily) is through a standby guardianship. This is a formal process whereby you petition the court to appoint the standby guardian before the fact. You can petition for your parents, your brother or any other third-party.

If approved, the minute you are incapacited or upon your death, the standby guardian becomes the temporary legal guardian until such time as the father exercises his rights or the court rules.

A father cannot unilaterally give up rights to his child. Again, the court must either terminate the parental rights on its own petition or on the petition of the Department of Children's Services OR in the event the child is to be adopted by your husband, a joint petition of you and the ex with an attendent adoption.

The only control you have over this situation at the present time is to appoint a Medical Power of attorney in the case of your incapacity so that medical decisions can be made for you and a financial guardian for the child who will be responsible for the child's assets until age 18 if you have assets left to the child.

Other than what I have listed here, you have no authority to deny the father his constitutional rights as a father. 1,000s of parents with a record raise children. That, in and of itself, is not grounds to deny either mother or father their rights.

FOR TOODEEMO:

Not all states hold the case of a juvenille in Family court. In some states, the matters of custody and visitation are taken by the PROBATE court and in other situations, by the U.S. District court.

Answer 3

A surviving natural parent has first rights of custody, unless those rights have been terminated by a court. That means a divorce if you are/were married. If not your child’s father has parental rights.

If you can convince the child’s father to voluntarily give up his rights You MUST see a lawyer. He will draw up the required paper work, file it with the court and get the Judgment.

If the child’s father refuses to give up his rights you still need a lawyer to file a petition to the court to sever his rights for cause (incarceration of example) and/or set up child support, visitation etc.

The bottom line is you need a lawyer now, not later.

Answer 4

Only if you have a joint custody agreement in place, or you are married. If neither applies, the court will hear petitions for custody after your death. He could apply, as could your mother etc - any interested party. If you have left a directive, that will be considered by the court, but the court must decide in favor of the best interests of the child. If the natural father is able to show he would provide the best home for the child, then he could win custody, even if you have made a declaration ahead of time. Most courts will favor the petition of a natural parent.

Answer 5

I have no legal background.

As far as I know, if a mother dies, the father gets the kids by default, meaning if the mother did not make other arrangements, such as legally assigning a guardian in case of her death. If the mother made such arrangements, custody would go according to her wishes. Father could challenge those wishes in court.

Remember the Anna Nicole Smith situation. She had a child by one man, then marries another, who even put his name in the birth certificate. Then Smith died. The father sought custody in court. The judge looked up Smith's will, which had no provision for the present situation. By default, custody went to the natural father.

I should say that merely to put her new husband name on the birth certificate is not enough. From this action, we can infer only that she intended to raise this child as if her new husband were the father, not that she considered the natural father as an unfit parent. For ordinary people, a case may be put that she did not trust the natural father. For somebody rich, who can easily afford all legal help, silence in this matter meant that she did not consider the natural father an unfit parent, merely not her first choice. Had she lived, she could have kept her child in that situation. But she died, and she never stated her wishes in a legal manner. Therefore, defaults were ruled, in this case, custody went to the natural father. I assume the new husband may have challenged this default if he could prove the natural father was somehow unfit, but he chose not to.

In your case, I would talk to a lawyer, make sure all the paperwork is in order, so custody goes as you wish. You said you made a notarized statement so custody goes to your brother. I live in New Jersey, and such note may not be legally binding. It could be different in Ohio. Please confirm with a lawyer.

Answer 6

A notarized statement is not enough, nor your wishes spelled out in a will when it comes to child custody. Just because dad was in jail does not terminate his rights to his child.
If something should happen to you, the dad could take custody of your son and your family could do little about it.
If dad had been in jail for some sort of violent crime, maybe your family could retain custody, but sorry, Edwards has it right, unless it can be proved that dad is a danger to the boy, your family doesn't stand much of a chance.
And to momma what-ever, your answer is totally wrong, it shows that you have no clue how our legal system works.

Answer 7

A surviving natural parent has first rights of custody, unless those rights have been terminated by a court.

Anyones suggestions that you can override the fathers rights in your will or that your family will have superior rights of custody are badly misinformed.

Unless "your acquaintance who works in a law office" is an attorney, you should contact an attorney directly for better advice.

Answer 8

No, your family does. They get your kid. But your family can fight that in court with your baby's daddy. The notorized statement is fine. But a will would be better, so you have all of the legal stuff under wraps. If you do live with your family and this would happen when your with them then your family would get the child. Plus, the father not being so good a dad would be bad for his case should he try to get custody of your son. All of that would be played out in court though, but I think it's all in your favor.

Answer 9

I think you need a real will, made by a lawyer and all legal and such. In it you need to state bluntly that you do not want your son to go to his biological father and why. The reality is that he will still after the will and everything, have a good chance for custody if he chooses to try to get it. Your best chance since you probably dont get any child support either is to get him to sign off on his parental rights in exchange for not having to pay child support.

Answer 10

i just did a trust for my son as well including a will. and i told my family attorney that i wanted to appoint who would care for my son, should i die. and he told me that unfortunately, i already did that and that the father would have first legal rights to him unless the court revoked his rights prior to me dying. i was told that he is the paternal father and that my son would even be removed from my husband now, his stepfather.