I don’t believe that she can give custody to someone else in her will if the father is still alive and involved in the children’s lives. If he were not around, paying child support, or involved then I would think that may be possible. Legally though I believe that he still shares legal custody unless it’s otherwise stated in the custody papers. He must not give up his paternal rights. I think that in the event of a custodial parent’s death primary custody would be transferred to the parent sharing custody. If she will not speak with you about this then I would say that you could consult an attorney, have them look over the child custody arrangement, just to be sure, and then in the event of her death from this illness, work out an arrangement so that their stepfather may get some sort of visitations if he wants. Their stepfather may be more involved in their lives than you two are aware.
Hopefully an attorney as I’m not positive about the will…
Oh, we know the stepfather is involved in their lives. Their mother has never been one to exert herself in certain areas, so they have stated that he “does everything for them”–takes them to school, cooks, cleans, etc-even prior to this illness presenting itself. They also have a younger sibling as a result of the marriage between their mom and stepfather. We pretty much thought that should this happen, the children would have visitation with their stepfather and half-sibling every other weekend, as they do with us now, and possible contact during the week since we don’t live very far away from one another.
venus
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???
venus
venus - this is a terrible situation and is not going to get much easier any time soon, especially if their mother passes. They are going to need as much understanding as they can get. It may take quite a while after they come to live with you to gain their trust, love and respect. You and your husband will need to sit down and discuss some “ground rules” such as bedtimes, homework time, what they are allowed to do and not do. You will need to sit down with them down the road and let them know what will be expected of them since they are living in your home, such as cleaning their own rooms. No one likes changes, especially ones as big as this, but children are more adaptable than you would believe. In my opinion, their mother needs to let them spend a little more time now with their father so that they can get used to it, but I can understand her reluctance if her time is limited.
The best thing that you and your husband could do right now is contact an attorney, make sure that your husband will get his children, and then he should get in touch with his ex and they need to discuss this situation. He does have rights but it’s going to be an extremely difficult situation regardless.
My husband and I went through that “don’t do enough” with his children also. It took a while but it has finally gotten through to them that things are different at mom’s house than they are at our house and that’s just the way things are. We do things with them but not the same things their mother does and they have finally realized that when they are with us, we spend all our time with them. We don’t leave them with anyone else to go out. Our time out is when the children aren’t with us. The best advice is, don’t try to compete because you will not win. When and if they come to live with you, eventually, you will find stuff that you can do with them that everyone enjoys also.
bump—don’t want it to get lost among all the spam!
venus
bump–still waiting for atty reply
venus
bump
venus
???
Is this not a question that can be answered here? If so, please let me know. Or is it requiring a bit of research? I know the atty has been on here and replied to many questions posted the same time as and much later than mine.
venus
What does the custody agreement state? Joint custody with the Mom being custodial parent? Of full custody and the Dad with liberal (though it doesn’t sound like liberal) visitation rights?
I am with StepMother in that I don’t believe she can ‘assign’ custody to a non-blood relative when their father is alive and supporting them. BUT it does sound like you need to consult his attorney on the specifics of the agreement in this situation. Also…how old are the children? Of course, kids tend to want to be with the more ‘giving’ parent…that’s only natural. The children have also bonded with the Stepdad it seems. My stepdad ‘raised’ me from 13 on up…but my Dad was still a part of my life. They are both important to me. I am sure you respect their relationship with their Stepdad. But change is hard, but it is managable and they will adjust. Very sad thing though…their mom being terminal.
Dear venus:
Wow - I am sorry to hear that. He should file a motion to appoint a parent coordinator and if there is an order saying they will discuss things, then he should file a motion to show cause. Yes, he should get custody if he is following the current visitation order, etc. Thank you.
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.
This is for Venus.
I recently came upon your messages on the message board in this site, I do not even live in NC, but I am also a stepmom. My husband’s ex also suffers from a terminal illess, we do not know how long she will live, how many years or anything. We know she has been sick because my stepson has told us, he’s 6 years old. She has a husband and has tried for many years to push her husband off as the father. We live in a different state so its makes visitation hard. We get him everyother Christmas, every Easter, and 9 weeks in the summer. We also fear what will happen if or when she dies or gets too sick to take care of him. They also have a child together and we feel that she will stop at nothing to give to try and give her husband rights, even though he has no legal rights to him. We know at the age of 6 that he would be fine in the long run if he would have to move here with us, as time passes though it will only be more difficult. We have been in a court battle for many years with her and she’s not happy unless she wins. We are already on our 3rd attorney in this state, its very difficult living in a different state and having to fly out there for hearings, trials and custody visitation. They have totally mananged to screw up the child support and now we have this ridicous wrong amount for arrearage, that my husband was not even earning, our 3rd attorney, which is very good and expensive has told us that there’s nothing we can do about the arrearage because the time limit has already passed to argue it., that was our 2nd attorney’s fault. We have to pay child support and daycare expenses monthly, which leaves us with not much money to live on. For some reason she also thinks were rich, were not, we have also had to borrow money for all these expenses. I get so frustrated because I feel that we just keep getting kicked down everytime we go to court. They treat Father’s rights like nothing and its all about the money and how much the mother can get, no matter is she is brain washing the child against the other parent or not. Just to give you a quick redown, we had a court order evaluation down on both sets of parents and the psycholgist sided with us and said we would be the better parents to care for my stepson and they still gave her custody!!! She’s sick and she has mental issues but because her husband did well on the evaluation, she got custody!! Where is the justice… Its nice to know that were not alone in a fathers fight.
To Madchen
No, you are definitely not alone in this fight. It is sad that fathers get the short end of the stick, especially if they are good fathers. I recently found it highly amusing that the judge who ordered my husband to continue paying alimony even though his ex wife has been remarried for 3 1/2 years, is now in the middle of a divorce himself and is fighting for custody of his own children and trying to deny his stb ex-wife alimony. We are so broke, yet we are looking at having to try to take out a loan to hire an attorney to fight whatever his ex-wife throws at us. In the meantime we have some very angry kids to deal with. They are on the verge of losing their mother and their terror over this is coming out in anger–total blind rage during which they literally beat on one another-fist fights. It has escalated over the past week. In her rage, during a screaming frenzy when she was taking all her anger out on her dad, my oldest stepdaughter let it slip that the doctors had told her mom she may only have 2 months left. This took us by surprise. We had hints of her health before, but this was the first statement given with an actual statement of her mom’s life expectancy. I am heartened a bit by Ms. Fritts comments on here that as long as he had followed child visitation, etc. he should get custody, yet I am still afraid that it will be difficult. I’ve heard of cases and done some research on cases where the mother put in her will that she wished someone else to get custody of the children and the matter had to be heard in court. In some of the cases, the father got custody. In other cases, the courts ruled against the father, placing the children with another maternal relative or stepfather and making the bio. father pay those people child suppport to raise childre he wanted to raise. I don’t know how my husband would handle the courts taking his girls away from him.
venus
Venus,
If our justice system gives a stepparent custody over their biological parent, then we seriously need to change the system, because it is not working. I agree with you on the part where you just never know what they will do in court. I have always believed what comes around goes around., but now I question that. It is so hard to find a good attorney, we have had to refinance our house many times to pay for attorneys and court fees. I pray that one day the truth will come out in the court room for us and they will see what kind of a woman we have been dealing with. We are on our 3rd judge which only makes matters worse. The only fair chance we had was with our first judge, he could see right through the games she was playing. Now since our 2nd and 3rd judge we have been treated unfairly. This 3rd judge we have treats my husband like dirt in the court room and he has given no reason for the attitude, my husband’s ex just plays the victim and wins everytime. I hope for your sake that the judge see’s that you and your husband have been there for the kids and gives you custody. It would kill my husband if we lost custody to his ex’s spouse. My husband’s ex, her spouse, has been very disrespectful and has told my husband that he is the father and my husband was nothing more then the sperm donor! My husband has been in his son’s life since he was born and for him to say that is just wrong and cruel. I keep hoping that God will say enough is enough and their true colors will show!! Good luck with your fight. Its so hard not to get down and want to stop fighting but some how you just have to pick yourself up and move on…
In the event of the death of one biological parent, custody is automatically vested in the other living biological parent. If your spouse dies and the children are not turned over to you, you will need to get a court order, requiring they be given to you, it will not be difficult to get. I wish you and the children the best of luck.
Helena M. Nevicosi
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
10925 David Taylor Drive, Suite 100
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.
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.
venus