Q: I have custody of my child from my previous marriage and my child lives with me. If something happened to me, would my child automatically be placed with my ex-husband? As a legal guardian, do I have the right to choose where to go? If it were written in a will, would the will be obeyed?
Vanessa – Florence, Alabama
ON: The law is based on preferences and is decided through various legal tests. The law prefers a parent to a non-parent. Between two parents applying for custody, as in a divorce, the best interests of the child determine the problem. The custody test between a parent and a non-parent is very difficult. It is extremely difficult for a non-parent to obtain custody of a child from a parent.
For example, if you were to leave in a will that your sister would have custody of your child, it would be legally unenforceable. The law would still favor the child’s father. However, if your sister could demonstrate that the father is not fit and that it would be in the child’s best interests to be with the sister, the sister could potentially get custody. If the father was in jail or something similarly dramatic, it would be easy. If he’s a reasonably good father, that would be impossible.
One of the issues that you can decide about in a will is who controls the money from your estate through a trust. You can arrange for the money you leave with this child to be spent through a trustee appointed by you in accordance with your preferences. However, you cannot determine custody. The courts will do that and they generally do a good job.
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