Can she do this?

I hope I get a response to this soon. We really need to know what to expect. My step-children are with us this weekend. Apparently their mother hasn’t been doing well, as was finally admitted by my husband’s oldest child. Anyway, the question was finally asked by them while I was out today. They wanted to know, if and when their mom passes away, if they could just continue to live in the house they are in now and just visit us every other weekend. My husband informed them that he is their father and he fully intended for them to live here. The reason they don’t want to live here? We don’t “do enough with them”. Well, it’s kind of hard to do much with them when they are only here every other weekend-sometimes not even then. We have gone as long as 3 months without ever seeing them. We can’t even take them on vacation, because their mother won’t permit it. They ONLY follow her rules and if she tells them they are not allowed to go somewhere, they will not go with us-they will to back to her house. But they blame it on us, not her. Since they are only here every other weekend (and one refuses to spend the night at all, going back to their mother’s each evening), we don’t buy a lot of “toys” since they outgrow them before they even get played with. In addition to that, we sent more than $1800/month to that home in child support and alimony (alimony–even though she is remarried!). We literally have trouble making it from pay check to pay check, having to borrow money from our parents for things such as car repair. However their mother has them convinced that we are rich, but are hiding it because we don’t want to buy things for them. So, since they “get more” at their mom’s house, they want to stay over there. We really need to know in the event of her death, what to expect. What rights does my husband, THEIR FATHER, have???


Dear venus:

Greetings. I definitely responded to this before. The answer is that if your husband is actively involved in the minor children’s life then in the event of the mother’s death, he should be entitled to the custody of the children. She cannot “give” your husband’s custody to someone else unless he is not involved.

I would however file a motion to determine her physical health and well-being…good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

(I’m posting again, as my original post seems to have gotten lost…)
It has recently come to light that my husband’s ex-wife has a terminal illness. She has informed her children that this disease is going to take her life. We don’t know a whole lot about it as they really try to keep it hidden from us. My husband has never, nor will ever, relinquish his rights as their father, although she tried to get him to sign paperwork stating that in the event of her death, he would give his parental rights over to her new husband. We want to be prepared for what might come. We do not know how long she will live-it may be long enough to render my question null and void–but should she die while the children are still minors we have questions about custody. As their father, we would think he would get custody of his own children. He is a good father, has never abused his children, pays his child support, calls them just to chat and enjoys their visits with us every other weekend-more if possible. There is no criminal record involved, he works full time as do I and we obviously can support the children. We fear however, that she will try to give custody of them to someone else, even going as far as to grant custody of the children to someone else in her will. Can this be done? Would that wish be honored even though their father is alive and well and is a good and capable man? Will he have to go to court to get custody of his own children should she pass away? What needs to be done in a situation like this? It can not be discussed with her. She WILL NOT speak to him and has not spoken to him in quite some time. She has also ordered the children not to speak to us regarding this subject.