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If something happens to me can i name a guardian for my son and do I need a lawyer? Can I take my son father off child support?

Brooklyn, NY |

I filed for child support from my son's father and he never paid anything for the past 2 yrs that he has been on it. My son is 8 years old, he has never gave any financial support. He has been on disability because of mental issues and being bipolar so the court didn't order the child support to come out of the disability and yet still he doesn't pay the $50 a month that was ordered. He did give some money to help me pay for summer camp but that was all. His mother has been supportive sometimes, other times when she gets angry she threatens to have my son taken away from me. Now there is a warrant out for his arrest and he has been asking me to take him off of child support. His mother is threatening to have me arrested for what I don't know. Can she file to take my son from me also?

Attorney Answers 3


1) you can and should do a will naming a guardian for your son. There may be a legal presumption in father's favor to have custody after your death because he is the biological father, but if he has the same issues that render him unfit for custody, you want to have someone named who could a) challenge father if he asserts custody and b) is fit to step into his place.

2) I would not free him from support. Indeed, you should be seekign a contempt complaint against him for not paying the $50. He has an obligation to support his son. Don't know why his request is tied to his pending arrest, but if he wants relief, he can seek modification from the court. If he is arrested and go to jail, yes, arrears will pile up and you, as a practical matter won't collect, but the obligation and arrears should still be hanging over his head at least as a symbol of his obligation, for you to enforce thru a contempt case when practicable.
3) Cannot see what mother-in-law could be threatening you with. I wouldn't worry about her threats. Just don't ever give her ammunition, like a threat in an argument or the like.

To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.

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Your ex mother can file for custody but unless she meets certain very narrow circumstances her chances of getting custody are nil. There is no reason to take your ex off child support. You need to speak to an attorney in regard to a guardian as a parent has a superiour right to custody over anybody else.

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Your child's grandmother can file for custody but before her application is entertained she needs to show that she has standing which is very difficult.

You should not relieve the child's father from his obligation but instead file to have him held in contempt. You further should go to the SS office Bc if the father is getting SS benefits your son should get derivative benefits until his 18th birthday.

You further should draft a will naming someone as the child's legal guardian should something happen to you. The father legally has a superior right to custody in the event of your death but the named guardian in this case will have standing to argue that custody should go to hub as the father is unfit to care for the child

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