Has anyone who’s divorced had a will written up? How does it work with young children? For instance, God forbid something were to happen to me. Would my family members get any form of custody of my children (if it’s in a will), OR would my ex automatically get full custody/control? Death is not written in our divorce papers, and it’s never been discussed between us, but it’s something I’ve been wondering about. I truly have no idea how it all works. Any advice is appreciated. Thank you!
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Help a mama out and respond anonymously on our forum. How does a will work with young children involved?
They go to your ex. Just because it’s in the will doesn’t mean they will uphold it.
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By law in most states the other parent automatically gets custody and if you’re family wants the child they have to settle it out in court unless the other parent is also deceased
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Father gets them. Unless court can prove unfit an you have a family member willing to fight for them.
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I feel like unless they’re has been prior judgment against the ex from being able to have custody of your children they would automatically go to their other parent. Probably best to ask the advise of an attorney in your area though
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Since I’ve already proved my ex unfit, my family gets them. He doesn’t even have custody.
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They would go to ur ex! That’s their father lol your family could fight it but i doubt they’d win!
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The father gets custody unless he’s been deemed a danger. I have my will set up so no matter what my assets will never reach my child’s father. A lawyer is definitely needed!
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The other parent usually gets custody and if still minors can apply for survivors benefits. Assets depends on state laws.
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I literally just did all my paperwork, I’m in Massachusetts. A will is not foolproof with custody, but the judge will take it into consideration. Tou can and should set up separate guardianship papers (my lawyer included this for free when I set up a trust and a will). Mine states full custody goes to my ex. If we both die, my brother gets her. This makes it so that if remarried the step parent cannot sue for custody as well. Also, you can put into place temporary guardians. For example my neighbor is one of mine. If I’m in a car accident, my ex is on vacation as well as my brother, no one else would be able to pick her up before they got home. Temporary guardians can get them until a permanent guardian can arrive.
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**be warned everybody: in Massachusetts, if remarried and the parent dies, the step parent CAN sue for custody, and get 50/50 (if this were the previous arrangement) wo guardianship forms. Literally just saw a lawyer and completed mine.
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The parent always has first right wtf kind of question is that
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They told my friend she could leave her kids to me and not her ex but it didn’t mean I would get custody. They would automatically go to her ex but it gave me the right to fight for custody. This was 20 some years ago though.
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I’m not sure which state you’re in but I’m in WA, I’ve talked to my attorney about this because I’m a single mother and one of my children doesn’t have a father listed on his birth certificate. If there is another parent present, they would retain custody. You can’t will your time with your child to someone, a family member etc. But your family can bring their own motion forward to family court for residential time with the child.
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I believe in some states there are grandparent rights which if you died your parents could make a case for it. Especially if they’ve played a vital role in the kids lives.
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It needs to be decided prior to anything happening. Otherwise, they would most likely automatically go with the father.
Their other parent would become their custodial parent.
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I have a loving will signed by a judge of something happens to me my kids automatically will be going to a very close friend of mine. My husband would still get to make some decisions and get to be their dad but my friend would have guardianship of them
Parent on birth certificate gets automatic custody unless there was a reason in the divorce papers stating why that parent was not allowed custody… if the parent on birth certificate does not take responsibility goes to next relative. This could be anyone willing to stand forward. Grandparents. Aunts uncles. Cousins
Must be of age
If no one stands up. Child goes to state custody
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I have a living will & will. In mine I have specifically requested her NOT go to her sperm donor, now at the end of the day it’s up to the judge. But, in my situation, I have sole custody, he hasn’t seen her in 5+ years (minus one inconvenient Christmas), is $10,000 behind, has a rap sheet 15 pages long, including drug charges (both using and trafficking), and is currently in drug court. I would hope that the judge could clearly see, he isn’t fit and she doesn’t even know him.
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Make a will. Even if you just notarize a paper for a dollar at the bank it’s better than letting someone other than who you want to get children
If a parent is still alive, that parent gets custody unless court ordered elsewhere. Will is irrelevant in this case.
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Other parent gets the kids
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The other parent will get the child, regardless of you putting someone else in a will.
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Only a judge can decide custody. A will is to distribute your assets. The deceased persons wishes will be considered when the time comes, but they don’t get to decide, unless both parents pass. Then, the people named in the will will be approached first.
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It may depend on the state I’m not sure on that but here in NJ when I got divorced 31 years ago had something happened to me my son’s sperm donor would have gotten him. In the divorce on my lawyer’s advice I had paperwork drawn up to appoint my brother my son’s guardian in the event of me being dead or unable to care for him. I had to get the ex to sign it but he did so I saved my son from ever having to live with his “father”.
In normal circumstances (no domestic violence, abuse, drug use issues, neglect documented, abandonment, has never been I. The kids life etc) the father will get sole custody automatically, no matter what you want because he is the other parent and his parental rights trump those of anyone else in either of your families.
That being said, you can petition the court to change your parenting plan to add that “in the event of my untimely death” and say something like “my mom/aunt so and so/whoever” would be awarded visitation rights (then it would lay out the specifics of said visitation, every other weekend, once a month, holidays, whatever.
Now if your lawyer drafts this up, sends to your ex, he agrees and signs it…that’s it, it’ll be given to a judge to sign and it will be the law in your case (your husband would have to return to court to fight it if he ever changed his mind).
If your husband refuses to agree you would enter mediation to try and find an agreeable compromise (which wld them get signed by a judge and be final).
If mediation fails you go before a judge, each side pleads their case and the judge makes the ultimate decision which is then legally binding and final.
If you just have it put into a will without the agreement of your ex it’s a waste of time because once You are gone, it’ll be his choice whether or not to respect your wishes.
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You can set up a trust fund and divide the amounts. Or give full amount once they are 18 or 21
I would look up your state laws regarding that, but most of the time the biological parent would get custody. If they decide to waive this or choose not to care for the child, then whoever you put in your will gets authority to fight for guardianship.
My neighbor went through this when I was about 14
From what I remember her mom passed her dad had to petition the courts to get her because she became a ward of the state automatically. Ask the mind assets and accounts went to the state because there was no will. I know her grandparents (mom’s parents) also tried to get custody. She was a ward of the state for 2 years. I use to watch her on occasion so it’s the only reason I know any of it. But that was on Missouri many moons ago
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I actually just had a will made… I have full custody with his dad have 16hr visitation a month. If I die my son would go to my mom if she’s not living he will go to my sister. He will have visitation but he will not live with him. Costed me $150 to have it signed by a judge
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Unless he is an unfit parent he will get custody bc he is their next of kin. However you two need to discuss who yall would want to take care of your children on the event something happened to both of you and put them in your will! You also need to make sure you have your funeral planned out how you want it and have a way for it to be paid for so your children arnt stuck with debt from that (I say this bc my father is a druggie and has nothing planned so I will be stuck planning and paying for his funeral and it stresses me out bc I am a stay at home mom who has vary little money so I will have to sale his house and land his vehicles ect. To be able to pay for it. My mom on the other hand has everything planned in her will and enough life insurance to pay for it pluse some) having a plan is a good thing.
The remaining living parent if they have not lost all rights and your family can seek visits.
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Of course they would go to their father. Why would they go to anyone else.
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You can put in your will who you would like the children to be with. Doesn’t mean it will be honored
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A will is you telling your family, friends & if needed a judge what you want to happen if you die. It’s not a legal order. If your ex is consistent part of their lives & has a relationship with them he will get custody. Depending on your state grandparents don’t have rights. Visits are upto the primary custodian. A judge can make recommendation but I don’t think they can order it. If he’s inconsistent you can write in your will that you’d rather they go to a family member. It would be upto your ex to explain why they’d be better off with him than the person you chose.
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Depends on the state. In IN the other parent gets primary but in the event of my death my Dad is entitled to some time
I had my will done after i got divorce back in 1976. My parents got everything of mine. And was put in trust for my kids. Yes their father would have gotten custody of them because he was their father. But again everything i had, ( which at that time really wasn’t much,) my parents would have controlled. So i would say either put your parents, sister, brother or best friend or even lawyer in control of your personal belongings/money etc. So this way the ex can’t take it . And this way when the kids grow up, they will have something from you. Thankfully i didn’t die 
. And redid my will 3 yrs ago
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The dad will get custody unless there’s a legal reason. Your parents would need to file for GPRS and the family can see her at that time. Hopefully he would be caring enough to continue to facilitate an appropriate relationship.
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A will won’t impact after death custody. Some judges take it into consideration but likely your family will need to either work it out with your ex or go to court. Unless he is unfit he will have full custody.
I’ve looked into it a LOT with my daughter being raised by my husband and her bio dad being in and out.
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If there’s a court order against the father for domestic violence then no, if there isn’t and hes a good Dad then I don’t see why not, so best your family don’t piss him off if anything happens to you
The remaining parent will automatically get the child/children unless he/she is deemed unfit
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If you don’t want your ex to have access to your assets I believe you can have a document made up to state that your assets be put in a trust controlled by a financial institution for the kids to inherit when they are adults at age 18, 21, 25 or 35 depending on when you think they will need it, be responsible with it, or be far enough away from family members likely to prey on them for the money/other assets. Talk to your bank & lawyer. My assets are all declared “Transfer on death” to my kids, but they are grown and flown.
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It depends on the state you live in also.
You write a testimony of guardianship in your will.
I have full custody of my kid. Dad is not in picture (rarely) and is on drugs. I live in California. My sister is my beneficiary but I still had to write that I would like my sister to he her guardian if I die. Her dad will still get a chance. She has to go to court and petition of legal guardianship over my daughter. She is willing to fight and get an attorney if anything happens to me.
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At 12 and 13 my brother and I got to decide to stay with our grandpa versus moving with our dad.
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I’d suggest looking into ALL the laws in your state concerning death of a parent of a minor child
Help a mama out and respond anonymously on our forum. How does a will work with young children involved?
I’ve always wondered that… I got remarried… I’ve been with my husband since my kids were 4&5 now they’re 10&11… would they go back to my ex if something happened to me or stay with their stepdad
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Where we live in Michigan if the custodial parent dies and the other parent is involved and able to care for the children then they go to the other parent. If the other parent doesn’t allow the dead parents family to still be involved then they can sue for rights and get visitation but not any form of custody unless that parent is deemed unfit.
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Ex will get children. Myself, composed a file of all the screen shots of being passed out behind a vehicle and lack of child support payments and lack of responsibilities on why her step father should continue her care and bio dad could continue visitation.
It won’t guarantee but it will make the case that step dad (the only dad she knows really) is the best option.
Oh and a hella crazy amount on life insurance to fight legal battles and both my children be well looked after.
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Ive had to consider this in my life. Doing my will (both living will and post mortem) taught me a lot.
It really varies by location.
I’m in Alberta. Here, you must have direct orders written or the kids go to the living biological parent, unless they are unfit. Then they go to the closest living relative.
I found in my case it was best to get a small lineup ready. A few (I used 3) people, in order of custody. That way there are no questions.
Discussion with the birth father over this wasn’t always easy, but it’s nice now that we have everything in place.
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Unless the father has been proven unfit by a judge then he will get the children. Mothers/fathers have all rights before any other family member.
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Where I live the non custodial parent gets kids and controls funds received from ss death benefit as well as inheritance unless it’s written that inheritance starts at 18 or 21. The only way step parent retains custody is if legally adopted before death. My state doesn’t recognize grandparents rights so there’s very little the court can do, most times won’t even issue visitation and that’s a costly court battle. If your husband is able to adopt the sooner the better to be safe.
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Reach out to an atty and discuss and do. You should have documents in place if you have children. Guardian’s selected and accepted before God for bid anything happens.
If he’s bio dad and has custody of any sort then they would go to him. But in your will you should put give to living father or whom ever and let them know where it’s placed at. That way if something does happen to you someone knows where the will is and the kids don’t get turned into the system while the state figures it out. My daughters Guardians are 1200 miles away so we had it put that our daughter goes to my mother in law until they can get here. That’s in the event that both of pass away
If one parent dies, by law, the kids go to said parent as long as the rights were not terminated. Divorce or custody are different than termination of rights. Other parents still have rights then they will get their own kids over relatives. Lol.
Kids typically go to their biological parents, even if there is someone else named as guardian. There’s a really high standard to deny a parent custody.
The next of kin, in this case their father, will get them. Granted he is a fit parent. Look up your state’s grandparent rights. Some states don’t have them, if in NC your parents wouldn’t get custody or visitation rights in the event of your death. Hopefully your ex isn’t spiteful and will allow your parents to maintain contact with your kids. In NC, custody, visitation and child support are 3 separate issues. Ie just because he pays cs doesn’t mean that he would get visitation and/or custody.
I would suggest this is a discussion between you, your ex, and a lawyer. It would be a good thing to iron out and have in place.
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Do you have a husband? My daughters dad isn’t in her life. Has no intentions on it either. But should I die if he wanted to he could claim her and take her away from her family except my fiancé will adopt her once we are married and should anything happen to be after that he will get her. Not her biological father.
Best to see a lawyer
This was an issue that kept me up at night. My ex husband was never involved in our sons life and I didn’t want my son with him should something happen to me so when I got remarried we decided, me, my son and husband, that he would be adopted by my husband. He loves him and treats him as his anyway. So that’s what we did. Now I don’t have to worry. Which makes me happy and gives me peace knowing he’s with his dad and sister. It’s definitely something that needs to be sorted. We also have a Will that states should we both pass they go to our close friends and if they can’t they’ll go to my cousin. I definitely didn’t want them to go to the state. My babies are my world.
My attorney helped me write something up about my oldest son. I had custody and it said he would go to my parents. I signed it and had a witness sign it. My attorney had a copy and so did i
In most cases the child will go to the other parent unless rights were terminated. I have a friend who in her will says that if she passes custody is to be given to her mother but the father’s visitation rights should continue. She was very specific about that. Again since she is living I’m not sure if the grandparents would have to go to court or if this would work. Best thing is to talk to legal services for your specific area
Pretty sure, unless he is well proven to be a danger, dad will be the first they look to for custody, since they are his too. No matter a will or whatever… They are not property or assets, they are children, no one owns them. Sadly even if he isn’t a great person, they will still probably look to him for taking the kids. Your family can fight, kids can give their wants, especially older kids… But not much you can do as far as wills or…
Help a mama out and respond anonymously on our forum. How does a will work with young children involved?
Father will automatically get custody before family unless he’s unfit to look after them
My parents divorced when i was younger. My mom had custody during school and my dad had my brother and I for christmas and summer. When my mom died, my dad took full custody over us. But my mom didnt have a will done.
Most likely kids will go to other parent. But something needs written that if something happens to the other parent, kids go to whoever parents agree on. This should definitely be brought up with lawyers, a mediator something…
I would definitely have a will and a trust set up for any monetary items, otherwise the other parent could gain control of any money left in the children’s names. You would run the risk of it being spent before the child becomes an adult and nothing being left for them.
I’m fairly certain the kids would go to the other parent. Depending on the other parent, they may like only having the kids part time. But definitely something that you will need legal advice from an attorney
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I’ve looked into this. Child goes to the other parent in the event of the CP’s death. Doesn’t matter if you have a will. If the NCP says it’s ok to go to say grandparent or Aunt/Uncle.
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I’ve checked into this before and was told “you can’t will a child.”
Unless proven unfit, they would go to the other parent.
This a question you should get legal advice on !
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Help a mama out and respond anonymously on our forum. How does a will work with young children involved?
If one parent passes, the other parent takes full custody.
It only makes sense. If something happens to your ex while the kids were in his custody, I would assume you’d want full rights, as would he.
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Yes the other parent automatically gets custody, you can specify someone else in your will that you wish to take custody but they would still need to get a lawyer and fight it if the other parent wants the child.
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I would speak to your divorce attorney or seek one to help with your will. They’re the professionals. Good luck!
Um if separated, and the parent with custody passes away, the other parent will then take full custody of the children. Regardless a will from the other parenting stating otherwise. I have sole custody of my children. They’re father, has weekend visitation. That he doesn’t really stick too. If something was too happen, and I was too suddenly pass away. Before my children were adults. Their father would take custody. No matter what our custody papers stated before I passed. Or if I wrote up some kind of will saying I didn’t want him taking them. Her is the father. And always will be. And has just as much rights as the mother. And more rights, then any other family member. Unless he is phsycally or sexually abusive and it is documented etc
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Your ex would get full custody automatically. But I left my life insurance to my sister so she could fight for my son if something happened to me. My hope was that he would let my son have a better life with my sister and the money to take care of him, and feel overwhelmed at the thought of a custody battle. But now my son is an adult and everything was fine.
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Obviously the SURVIVING PARENT gets the kid(s)…
Get a will written up . You can name some one a guardian of your children in it in case of your death . Any money or anything like that can be written into it but have the stipulation it’s held in a trust fund
I’m not sure about how it would work if it’s in a will… I wish my husband and I had looked into this… He passed away last year and none of his family (myself and his parents included) even gets to see or talk to my step daughter… His ex wife doesn’t let her have any contact with any of us at all… Unfortunately I think it is left up to the living parent if they take on the custody… Custody would likely go to the living parent if fit, but I think it’s up to the parent if other relatives get any visitations or anything… In some states grandparents can fight for grandparent rights if a parent has passed away
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Yes the other parent automatically get the kids, but if he is remarried he may not want them, so put in your will who you wish the kids go to just in case your ex doesn’t want them. A will can be contested in court, a Living Trust cannot be contested in court.
If the name of other parent is on the birth certificate child goes with that parent
The grandparents could possibly file for grandparents rights depending on where you live
Depends on state laws , I had full custody and in my will I appointed a guardian, father had little to do with child. If you leave money business, property etc it goes in a trust until at least 18 with a trustee over it can be guardian , attorney , bank etc
I am educated in certain areas, not wills ENTIRELY however Ido deal with wills to some extent. The children will go to their father. It’s a very VERY wise choice to stipulate in the will who would get the kids in the event their dad also passes away, or else the state will decide and that can mean anything including foster care or creepy uncle randy that you wouldn’t want your kids with at all.
If you have any type of financial account (Roth, 401k, municipal bonds, etc) and they are the beneficiaries, if they are minors at the time of your passing and the will does not state exactly what to do with the money until they are of a certain age (each state has a different age of majority from 18-26), their dad will have control of it. Minors legally are not allowed to gain control of accounts. This also applies to your life insurance. Each state is a little different with these laws, but as a general rule, you want to have specifics in place…
Get as much in your will as you can, with specifics, and make sure to update it as needed. The more in a will, the less in probate…
Contact a lawyer - this is not something to do on your own if you have kids.
My state is if it’s in the will the next person you assign gets custody not the other parent my lawyer helped with mine
You need to ask the lawyer that’s drawing up your will.