Living Will: Custody of Minor children

Asked about 6 years ago - Niles, OH

I am a single mother of 2 children. In the event that something happens to me, I wish custody of my children to go to the maternal grandparents. The childrens father is scarce in thier lives at best (having seen them 6 times over the last 3 years). If this is docuumented in my living will, is it enforcable, or will the biological father automatically get custody in the event of my passing?

Additional information

I am married and have 3 children from a previous relationship. If I was to pass who would get custody of my children? The biological father who's not a part of my childrens' lives, or my husband who is acting as their father?

Attorney answers (1)

  1. Barry J. Dubrow

    Contributor Level 12

    Answered . A Living Will is a document that alerts health care providers (and your family) what your wishes are about medical treatment and procedures to be performed on you if you are in a terminal and unconscious state. So I assume that you mean a Last Will and Testament, generally called a Will.

    Since the childrens' father is alive, he will have rights to the children. If he is truly unsuitable, this may be proven in family court, but if he is truly willing, it will be difficult to overcome. Nevertheless, I would encourage you to write into your Will your wishes as to Guardian of the persons of your minor children, because your Will would be looked at in the event that the father does not wish to take custody of the children or is somehow otherwise prevented from taking custody.

    A first step would be to consult with a local estate planning attorney, especially one familiar with local family law. Your childrens' future is too important to not seek the best advice, even if the chance of losing you while they are minors is remote.

    But perhaps the best advice I could offer is to stay healthy, because your children need their mother and love her very much.

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