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Custody of Step Kids if SO were to die

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hexed posted 3/18/2014 08:34 AM

My SOs DD14 has recently come to live with us. She refuses to go to her mom's house as long as her step-dad is there.

My SO has a medical condition that has led to a couple of hospitalizations in the last 5 years and although unlikely, could result in his death.

He is in the process of redoing the custody agreement with his XWW. We will be getting married in 2015. He is working on his will. DD14 does not ever want to go back to her mother's house. She is adamant about it and is a runaway risk according to her counselor. The older she gets the more plausible that would become.

After a recent episode that resulted in a trip to the ER, we had a very candid discussion with DD14. She says she would want to stay with me not her mom. Needless to say, that's awkward.

Is there any legal way to do this? Is it unheard of? I'm fine with it but I can't imagine that the XWW would be OK with it. Anyone know anything about this?

Leia posted 3/18/2014 08:39 AM

Check your state's laws. Perhaps SO could will his parental rights to you? I've heard of this before, but have not personally checked into it. The L doing the will will know more.

sparkysable posted 3/18/2014 09:53 AM

I think even if he chose someone else besides the child's other biological parent, the biological parent would always win if there was a fight for custody after his death. However, I don't know how much the bio-mom would fight for a teenager who wants nothing to do with her or the stepdad. There must be a reason she so adamently doesn't want to be with mom and stepdad. Did something drastic happen between them?

Kajem posted 3/18/2014 10:04 AM

Check into legal guardianship.

Gemini71 posted 3/18/2014 14:02 PM

I was concerned about STBXH getting full custody if something should happen to me. I was told that the only way to prevent this was to remarry. Then my new spouse could petition to adopt my kids. In that case, the X's parental rights would be terminated in favor of the new spouse. Judges don't like to terminate parental rights without someone waiting in the wings to take their place. Really doesn't seem fair.

hexed posted 3/18/2014 14:53 PM

There is no way that her mother would relinquish parental rights. We are stunned that she allowed DD14 to move in with us w/o a major court fight.

We are unclear of all the details of the situation with the step dad. We have both been phone witnesses to verbal abuse by both the step dad and the XWW. There was a rapid downhill spiral of DD14 after XWW remarried. It may be not directly related to the step dad. She is prone to creating drama to get her way. It may be that she just wanted to live with my SO. In reality, at her age to some extent the real cause doesn't matter. She isn't going to stay with her mom.

Regardless of the cause it is quite apparent that she is unwilling to go back and would refuse if forced by any means possible to a teen. When she left her moms she brought only a few days worth of clothes and has refused to go back to get anything else if it means seeing her step dad. She has met with her mom a few times but nothing more.

Nature_Girl posted 3/18/2014 15:46 PM

Look into the possibility of her becoming an emancipated minor (should he die, of course, not now).

hoya96 posted 3/20/2014 19:33 PM

I asked my attorney about this very issue when I re-married and we drew up new wills. Basically I wanted to know if there was ANY way I could put ANYTHING in my will that would have legal weight for my husband to have custody, or heck even guaranteed visitation rights, should I die while the kids are minors.

The short answer is that step-parents have no rights. Even if I explicitly requested it in my will, a judge would never grant it should their father still want custody.

My ONLY consolation with this is that his wife (the AP) is in the same boat should ex die, and will lose if she comes after me (and I imagine she would).

I did, however, make my husband the executor on my life insurance policies, their 529s, etc, so at least he holds the purse strings if I die. I figure that at least guarantees him contact?

Hopefully it's all moot!

Holly-Isis posted 3/21/2014 08:44 AM

My dad had to let his 16yo SD move in with her dad when her mom was killed in a car accident. He had a history of abuse and neglect...even possibly killing or having my stepmom's horse killed when she started dating dad.

I would look into the emancipated minor route NOW so you know the feasibility. Another option they explored was her maternal grandmother.

Fortunately for the SD, she had had years away from the unhealthy situation of living with her dad and had learned skills that helped her cope. Also, the OWifey was apparently his new target for bile. So as soon as she graduated she went away to college and spends most of her breaks with her grandma and my dad.

It's good you're planning ahead, you never know what would happen. I suggest that you plan for what happens if you both die or if you die and he's incapacitated in some way. Any thing that could happen, have a plan.

Meanwhile, make sure she has the skills to recognize and deal with unhealthy relationships. It will serve her well no matter what happens.

Griefstricken25 posted 3/21/2014 19:35 PM

I would do everything you can to make yourself as much her legal parent as you can, aka legal guardianship. You may not have rights if your spouse were to die, but the precedent you are setting, by her living with you, you having guardianship, and her own refusal to go live with her mother, would stand in your favour to allow her to continue living with you.

I don't know what the legal situation is, but I have a friend in a very odd situation. She married her husband, who already had a daughter, and for awhile, the daughter went back and forth between her mum and dad's, but eventually lived primarily with her dad and step-mum (my friend). My friend had a daughter and son of her own. In the past year, they have separated, and her step-daughter (along with her own children) all live with her. The step-daughter has seen her mum maybe once in the past year, and she sees her dad as often as she wants, or when her younger half-siblings see him. It doesn't sound like they see him much, either. I don't know what it will end up looking like if my friend officially divorces her husband, but it sounds like step-daughter is most comfortable with her step-mum and wants to live with her and her younger siblings. My friend is Canadian, living in the States, and this situation with her step-daughter is the main reason she is staying down there. She doesn't want to abandon her.

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