Thomas McCutcheon

Q: I have custody of my child from my previous marriage and my child lives with me. If something were to happen with 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 be followed?

Vanessa - Florence, Alabama 

A: The law is based on preferences and decided by different legal tests. The law prefers a parent to a non-parent. Between two parents seeking custody, as in a divorce, the issue is determined by the best interests of the child. The test for custody between a parent and a non-parent is very difficult. It is extremely difficult for a non-parent to gain custody of a child from a parent.

Therefore, if you were to leave in a Will, for example, that your sister would obtain custody of your child, that would not be legally enforceable. 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 something equally dramatic 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 from your estate through a trust. You can provide that whatever money you leave that child is to be spent consistently 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 good job.

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