Legal guardians should the worst...
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Forum Name: Single parenting
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Topic: Legal guardians should the worst...
Posted By: Plushie
Subject: Legal guardians should the worst...
Date Posted: 08 September 2011 at 9:24pm
| If i were to die, and had my mother named as DS's legal guardian in my will what are the chances she would actually take custody of him? Have discussed briefly with his father and while he agrees that his situation would make taking immediate custody of DS impossible he is hesitant to my naming my mother as legal guardian because he thinks it means he'll never see him again. He flip flops between demanding full custody and insisting he doesnt want any custody at all just casual visits. So, if the worst were to happen, mom is named as DS's guardian in an official will and he were to challange it, what are the chances my mom would come out the winner? |
Replies:
Posted By: ....
Date Posted: 08 September 2011 at 9:46pm
| I'm off to a solicitor on Tuesday morning to sort out Bentley's legal guardians if something happened to me, I could be cheeky and ask if you don't have a decent answer by then. |
Posted By: minik8e
Date Posted: 09 September 2011 at 7:37am
| My parents are named as additional guardians in my will, so that I have done what I can to ensure they will still be involved in my girls' lives if I were to die. The problem is, the father's rights will generally come first over and above anyone elses, even if they haven't had anything/much to do with the child. That's what my solicitor said to me anyway. |
Posted By: Plushie
Date Posted: 09 September 2011 at 8:18am
| I suspected as much. Though like i said i have talked it over with him and he agrees 100% if i were to die in a car crash this arvo he wouldnt be prepared to have Max. It would take him a few months AT LEAST to be ready to have him (he'd have to move towns, change jobs, find childcare...thats just the beginning) and i dont want Max to end up in foster care for those months or something. I think i'm just going to have to NOT DIE just in case. |
Posted By: ....
Date Posted: 09 September 2011 at 10:15am
| It would make a lovely sitcom if he was in charge of Max right away. |
Posted By: minik8e
Date Posted: 09 September 2011 at 12:05pm
| The thing is, that even though he says that, he would most likely get awarded custody straight away and just have to deal with it. Unfortunately because he is the father, he is first option, over your mum. |
Posted By: Plushie
Date Posted: 09 September 2011 at 6:23pm
| That is such ballsack. |
Posted By: Shelt
Date Posted: 09 September 2011 at 7:08pm
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I'm kind of fortunate in that the parenting order I have states that custody of DD will not automatically pass to her Dad if I die. Not sure how but my lawyer snuck that paragraph in without him noticing (go her!). I have named my sister as guardian in my will and I have asked her to fight as hard as she can for contact with DD. I don't expect her to be awarded custody, but my arguement was (and I have written this out for my sister) that if I died her dad probably wouldn't let her have that much contact (if any) with my family. I think it would be pretty traumatic for DD to lose me and then lose the people she sees more often than him (she sees my family at least twice if not more a week, sometimes we spend all weekend with one or both of my sisters). I just wanted to make sure she had regular contact with my family. It would be incredibly hard for my sister but I want her to take DD straight away if I die and then wait for DD's dad to file for custody of her.
my lawyer says he would be awarded full custody if he fought for DD but I am hoping some judge would take my wishes into account and let my family have at least an overnight a week. I think in my absense my sister would be a good subsitute for me. Like you say bowie, I am just hoping that I won't die  Poor DD would not have a very good outcome if that happened (aside from losing her Mum which would be hard anyway her Dad is absolutely hopeless).------------- http://lilypie.com"> 
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Posted By: Plushie
Date Posted: 09 September 2011 at 7:25pm
| I think i might actually have to go draw a will up with a family law person instead of getting it done on the cheap. I am hoping that his father will agree to some legal magic that signs over his custody to my mom should the worst happen. He has already agreed to it verbally will have another chat to him and see if he is really willing to put it down on paper. I am not trying to cut him out of his sons life and hope that he would eventually take over custody of him but if i were to go out suddenly - well he lives in army barracks, the army is his career, he doesnt own a house and he is over 2hrs drive away and that is just the start. What is he going to do, pick up Max and drive him back to an army base and make up a bunk? I am wanting, i dunno, a 6 month period in which my mom would have custody while he prepares/wondering if i can attatch conditions like he must have a house, must have a job + sutiable care lined up etc. I guess i 'could' but i'd be dead so who knows what'd happen. I wish i hadnt started this train of thought now. |
Posted By: ....
Date Posted: 09 September 2011 at 8:03pm
|
Who would get custody of Bentley?
If I put Joe (not my partner) down as a testamentary guardian, would he get custody, or would it go to my mum/brother (a relative)? |
Posted By: Plushie
Date Posted: 09 September 2011 at 9:11pm
| I think it'd go to his bio father chick. He is on the birth cert isnt he? The good news is had a chat to my ex and he's agreed with Max going to my mom, at least to start off with and will sign off on that. Dont know what legal stuff has to happen for that, guess the lawyer will advise me. And at the end of the day at least my wishes are down on paper and i've had the discussion with his father. We are going to have a sit down chat some point in the near future so he is familiar with my wishes for DS. Best i can do i gues. sh*t i'm morbid. |
Posted By: minik8e
Date Posted: 09 September 2011 at 10:22pm
|
Bowie, I know that you want the best for Max, but if you put conditions like that, they won't stick. It's kind of like him saying to you that you must own a house to have custody of Max, and a job etc. I know that we all have our own idealistic ideas, but unfortunately we can't impose them on other people....I think basically what we should expect from the other person is that they love and care for your child to the best of their ability and do not intentionally cause harm or upset to the children. I would love to say to Mark - girls are in your care, so you HAVE to have them in YOUR care - but I know that it will never happen, so I just console myself with the knowledge that they are being looked after, and are happy and healthy. Sometimes that's all that you can hope for and expect.
I apologise if that sounds harsh - I'm recovering from a godawful tummy bug given to me by the girls (on my birthday nonetheless). |
Posted By: ....
Date Posted: 10 September 2011 at 9:34am
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Bentley's father isn't on his Birth Certificate, he waited purposefully until I had sent it away to meet DS.
Now he wants and has nothing to do with him. I'd give custody to my mum, but she's getting old and she has my dad to look after as well as work, realistically she wouldn't be able to have him full-time, but it'd be nice if DS stayed the night with them every now and then, or something like that. |
Posted By: Plushie
Date Posted: 10 September 2011 at 7:22pm
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I know Minik8e in reality, and no you dont sound harsh at all!....in the end we decided that we'd meet and discuss my expectations for Max's life (which would include all that kind of crap) and he said he'll attempt to honor it. So at least my wishes for him are out there and i've said it and thats the best i can do in the end. So im going to end up with a legal will and a set of instructions for Max's care that can't be forced on him but i do think he'd respect some if not all of what i say. Im not asking for anything outrageous. Just that he has a stable home and my ex moves to where Max is so he doesnt have to change schools etc on top of losing his mom blah blah. I sound like a control freak dont I?
Bec thats so sh*t. I remember your earlier posts him talking about wanting to be involved as much as possible. I also saw your facebook status saying if you dont know you enough to know his dad is then you dont know you enough to ask and MAN thats so true. I get that one! Though i admit i reallllllly want to know, Timaru being so small and stuff. I'd probably know him then i could hate him from the distance on your behalf 
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Posted By: Plushie
Date Posted: 10 September 2011 at 7:25pm
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ps. Happy Birthday!!!!!
pps. His father did impose conditions on me when we drew up our agreement. We did a private thingy though not actually court ordered. Things like i dont do drugs, i don't live with a partner without telling him, Max doesnt see a doctor without me telling him why...nothing a court would order but happy enough to agree too. |
Posted By: caliandjack
Date Posted: 10 September 2011 at 8:34pm
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Not sure if this is legally correct - If you make your Mum the executor of your will/estate then she can make the decision as to what happens if you should die, in this case Max, it doesn't automatically make her his legal guardian would give her the legal power to decide what is in his best interests? ------------- http://lilypie.com" rel="nofollow">   [/url] Angel June 2012 |
Posted By: choco69
Date Posted: 11 September 2011 at 12:12pm
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i've thought alot about this one, particularly as my wee girl has no legal father being a donor child.
my understanding is that if I was to die without putting it in my will about custody/guardianship then the govt basically takes over care and will decide where she goes (wasn't happy about that idea). the child will not automatically go to a family member, you can decide on friends or whatever as long as it's legally written down - and you can go to the public trust and get them to do it all for free my decision was that my baby guardianship/custody would go to my sister and her husband - mainly as they already have 3 children (who are not that older) and also are financially able to take on another child without it causing undue stress on them. although as my sister lives in australia we have talked about what if baby is a little older and doesn't know her as well as say my parents, so my sister has agreed that as the guardian she can decide that if my parents are well then they can take over full care whilst my daughter transitions to being comfortable with living with my sister and her family my sister is also aware of other wishes I have around my daughter maintaining contact with her donor half siblings so that she knows about and has even a passing relationship with those she shares a genetic connection with Bowie, would definitely talk to someone who knows all the ins and outs - and you can go to public trust and get them to work thru it with you and they don't charge if you name them executors of your will etc - worth invesitaging ------------- http://lilypie.com">  
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Posted By: Shelt
Date Posted: 11 September 2011 at 7:46pm
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Why did he put in the agreement that Max doesn't see a doctor without you telling him why bowie? If I asked DD's dad every time she needed to see the doctor I'd be in major trouble - we spend a huge amount of time at the emergency doctors! And he for some reason doesn't want her to have her tonsils out even though she gets tonsilitus all the time and a specialist has said she needs them out.
On the financial note - I got life insurance and in my will have written down what I want to happen with it. In my case I have a mortgage so most of the money would repay the mortgage but there is another $80k after that that should be put aside for DD. I have asked my sister to either use that for DD's care and give DD the house when the time comes (title passes to DD but to be held in trust for her till she is 20), or if the money runs out and she can't afford the upkeep on the house to sell the house and keep the proceeds for DD to buy herself a house and pay for uni. I guess a lot would depend on how old DD if I die and what my sister's situation is at the time. She's currently single and could move in here to be with DD but if I died in 5 years time that could be different... Oh the things you have to think about when you have kids! All the thinking about it is now giving me nightmares - I had a terrible dream about a tsunami last night
Hope you had a happy birthday despite the tummy bug minik8e. ------------- http://lilypie.com">
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Posted By: Plushie
Date Posted: 11 September 2011 at 8:04pm
| Oh, not like i have to call him BEFORE the doctor, more like i call him after and say oh by the way max was at the doc for an ear infection today. I admit i am not good at keeping it up - he had several return visits for an umbilical thingy that had to be nitrated and i certainly didnt call him each time. I was mostly thinking to the future - when he might have DS for parts of the week and what i would expect from him when it is reversed. Like me living with a partner is SO unlikely and it doesnt matter but chances are high he will move his flavour of the week into his house and i really want to know when that happens if Max were to be staying there. Its all very weird i know - we hashed out the details before Max was even born so i threw a lot of crazy sh*t into the mix. I was overdue when we had finished so i was a bit mental lol. Oh well, its still working. |
Posted By: ....
Date Posted: 13 September 2011 at 10:32pm
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Alright, the lawyer today said that if you appoint a testamentary guardian who is not Maxy's father, it is unlikely (unless he is unfit) that they would recieve day-to-day care, they can however apply for access.
Also, $200 to do my will with two lines stating Joe as Bentley's guardian, and leaving my stuff to Bentley. Mental. |
Posted By: fattartsrock
Date Posted: 19 September 2011 at 11:24am
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We just did our wills and I expressley dso not want my children going to any of my family. Lawyer had us write a letter explaining explicitly what our reasons were and should they challenge it, that letter is "our voice" in a court of law. It had to be donw legally and she said it was no way a given that our wishes would be carried out should that happen but it would have to be taken into consideration by the judge when they decide. ------------- The Honest Un PC Parent of 2, usually stuck in the naughty corner! :P |
Posted By: fallen
Date Posted: 19 September 2011 at 11:40am
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I wrote too have a letter filed with my will stating why I don't want DD1 going to her father. I also added emails he sent me admitting his heroin use etc as 'proof'. ------------- |