Ask the Attorney is sponsored by local attorney, Thomas W. McCutcheon, as a service to the residents of NW Alabama. I have custody of my child from

my previous marriage and my child lives with me. If something were to happen to me would my child automatically be placed in the home of my ex-husband?

Do I have any right to decide as legal guardian where she would go?

If it were written in a Will would the Will control the issue?

Michelle, Muscle Shoals, AL

The law is set up based on

preferences and decided by different tests. The law prefers a parent to a non-parent. Between two parents seeking custody, the issue is determined by what is in the best interest of the child. The test for custody between a parent and a nonparent is very harsh. It is very difficult for a non-parent to gain custody of a child away from a parent.

Therefore, if you were to die leaving in a Will, for instance, that your sister would obtain custody of your child, that would not matter at all. The law would still favor the child’s father. However, if your sister could prove that the father was unfit and prove that it would be in the best interest of the child to be with the sister then perhaps the sister could get custody. If the father was in prison or on drugs it would be easy. If he is a reasonably good father it would be impossible.

One of the issues that you can decide in a Will is who controls the money through a trust or other device. You certainly can say that whatever money you leave that child is to be spent consistent with your wishes through a trustee that you appoint. However, you can not determine custody. The courts will do that and they generally do a pretty good job of it given the fact that a father or mother is going to be favored.

Thomas W. McCutcheon Attorney and Counselor at Law McCutcheon & Hamner, P.C. PO Box 38 Florence, AL 35631 www.mccutcheonhamner.com

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