My husband and I are having Wills done for ourselves. We have 3 children, one I had when I was 18 with a boyfriend. When he was 6 months old we established custody, I was given primary custody and the father joint legal. Fast forward to now, my son and his bio father don’t have a relationship nor know each other. Haven’t spoken in years, and when they spoke years ago, it had been years before that when they spoke last. Finally, my question is, in my Will I have my children going to a family member. Would there ever be an issue with my oldest child being separated and placed with his estranged biological father? Given the Will, and my son would be able to speak for himself (he’s 15 now) that he doesn’t know his biological father? I’m sure I could ask this at our Will appointment but just seeing if anyone knows or has witnessed this with any other family.
He has a say, so not unless he wanted to.
Every state is different as well. I’ve seen grandparents win custody cases over biological parents in cases. Age and preference also play a factor. Not wanting to separate kids is also another factor. So many things are considered when making decisions. Speak with a professional about the situation.
I was told yes, the biological will have the right to take or refuse the child. (If they can find him). Unless he gives up rights to your child he will always have a say until that child is 18. I had papers drawn up my by attorney that I had my daughters father sign with his attorney. They stated that he could have visitation but agreed he would not remove my daughter from her step father or where I chose to place her. Given she is more familiar with the family I had listed. It’s not a guarantee it would ever work if he decided to fight if I died. But both attorneys agreed that it would show he agreed without force and so on and made the choice to sign and agree on his own.
You should ask an attorney.
Yes traditionally 12 is the age they can potentially choose which parent to live with but its completely up to the judge to grant it or not. But when dealing with the death of a custodial parent… usually next of kin… the other parent. If it’s in the Will then the courts will definitely take the custodial parents wishes in consideration. The courts will make the decision based on the evidence of what’s best not just what the child wants. If the other parent has abandoned said child it’s definitely easier for the person the custodial parent has chosen to be awarded custody.
Try and keep the kids together. They will need one another to help process the loss.
Technically.Yes your son’s father could get custody because he is the next of kin and there is a custody arrangement regardless. Your son can speak on his behalf.But it is ultimately up to the court to decide what is best for him Until he turns eighteen. However they may feel like it is in his best interest for him to be with someone else that he has a relationship with.
It’s best to ask your attorney. Being there are factors that may affect the answer. And they’d be the one to best guide you in your specific situation.
Btw if something you want is full custody for your son and to be able to not have biological dad be a factor in these decisions, you may want to ask for full legal custody on the grounds of abandonment, since you say he’s not been involved in your sons life in years.
Take it to the courts and see if you can have his rights taken away since it’s been years
After he is 18 he can choose for himself courts won’t make him. If something happens within the next 3 years it’s possible.
If it’s been that long then Possibly look into abandonment and start the process of husband legally adopting your son. A lot of courts take into consideration the child’s wishes at the age of 12 but that doesn’t guarantee anything.
I’m kind of in a similar situation. Once the child reaches a certain age the courts will ask the child. Here it’s 14. If you have a small child unfortunately they will try and have dad involved they may not place him with them, probably have dad and child do supervised, dad will have to do classes and stuff. My daughter loves my husband wants his last name I can’t even change it or her be adopted by him until she’s 14 and her bio had his chance to do all those things and failed yet we still have to wait. Family court is a joke I definitely recommend having his rights taken if the kid is old enough and dad is never involved.
My guess would be that you would need to file for abandonment on his biological father especially since it has been years since they have had any contact. That should make it to where that there are no issues and the previous custody agreement would be void. I wouldn’t think that any judge in their right mind would place a child with an absent parent that they barely know without good reason.
He is still a legal gaudian so he will be notified but at that age unless there is a custody fight where the father wants the son I doubt very much that any court would side with the father is that was against the child’s wishes.
There is No legal age for a child to choose in Australia. However, at 15 yrs a court would definitely consider his requests, especially if he can show there is no pre-existing relationship or bond with his Bio father.
I don’t really think it would be an issue at all.
Legally the child will need to go to his father unless he agrees to something else. My ex had a son he didn’t even know about until a few months before his BM died and when it came in front of a judge they said he was next of kin even though he never even met the child. The judge explained it’s the father’s constitutional right as his bio parent. You would need the father to agree to the will in regards to his child or go back to court for abandonment and custody
His father still has legal custody.
The judge would respect his wishes now at 15!
In the UK parental responsibility trumps guardianship so if the bio dad still has parental responsibility he can claim the child
I didn’t realize you could will children to someone. If they have a bio parent alive, you can’t just gift your child to someone else. If they have guardians set up or the other parent is dead, that’s different .
Yes by law he will go to the other parent because that is his biological parent. When he’s 18 no but anytime before that yes he absolutely will be placed with his bio parent. Unless bio parent is in jail or documented unfit.
I would suggest going to court and petition your spouse to legally adopt your son if his dad has no contact with him.
I would 100% make sure to have your will reflect exactly what you want, and that is that your children are not separated if you were to pass. Please please please speak with your attorney and protect your children. My sister is 33 years old and dying and on hospice as we speak. The nurses came yesterday and said she only has 24-48 hours. She has 2 children and now it’s too late for her to draw anything up. She only found out about the cancer less than 4 weeks ago (very aggressive and it’s stage 4). I’m telling you this bc you never know when or what will happen. Trust me, none of us saw this coming when she went to the ER for pain.
Frankly that is advice you need from an attorney, but you can look into having the father’s parental rights removed through the courts then in your will set it up for your family members to take custody.
Nothing in your will will affect what that kid does even if you die the day after you sign it. The kid is old enough to make their own decisions in court at 15
You can’t will children to anyone if something happens to you and your husband the courts will decide
I can get a will written for $38! Lmk if anyone is interested
Unless his rights are canceled, he will be the first pick 
I would ask him and place him where he feels comfortable. He may want to stay with his siblings if that happens
From our court experience in Illinois it doesn’t matter what it in the will if he still has rights then child goes to dad.
My attorney told me that it doesn’t matter what you put in your will about your child/children. It depends in the court.
I myself have a son who’s father isn’t involved and I have sole physically and legal custody. He has supervised visitations that he doesn’t utilize. It’s been that way since he was 3 and he just tuned 11. If something happens to me he would legally go to his biological father unless someone would get an attorney and take it to court.
The child if they are a certain age can testify or voice their opinions in court but that doesn’t mean anything.
I have documented everything since I separated from his father and my attorney has all of that down to text messages, phone calls, calendars when we used to call him to talk and whether or not he answerd or called back, when we would offer him to be involved in holidays or meet us at the park.
I also have a separate fund that my parents or whoever could use to pay the attorney if something would happen.
From what I was told biology trumps WILLs. So yes if you passed, even if your husband was still alive your ex could get custody. However he’d have to contest custody first. He hasn’t maintained a relationship do you think he’d hire a lawyer & fight for custody? Judges rule on case by case basis. I’m sure the fact that his father is a stranger to him, he has a relationship with the person you appointed & age will come into consideration.