My ex wife has serious cancer, we have an 8 y old, we got divorces in 2008, she won sole custody of the child, California lawyer

Asked 9 months ago - Rancho Cucamonga, CA

my ex wife has a serious cancer, we have an 8 years old child, we got divorces in 2008, she won sole custody of the child, i see him on a regular schedule, he has his own room in my house where he sleeps, she got remarried few years back and my son calls her new husband "step dad or dad" what happens if she dies, is my son automatically goes to his biological father or am i looking at custody battle with her family or husband over my son's custody, again the court order was sole 100% legal and physical custody to the mother with no visitation rights to me, i never changed it or fought it because i never had to, i saw him on a regular with a fixed schedule
Q. how do i protect my self and make sure that i don't have to lose my son to some step dad or grand parents

Additional information

San Bernardino County

Attorney answers (3)

  1. Nadine Marie Jett

    Contributor Level 16


    Lawyers agree

    Best Answer
    chosen by asker

    Answered . First, it sounds like there has been a substantial change in circumstances since the order of 2008. The changes are 1) you are spending more time with the child than was granted; 2) your ex has a life threatening illness.
    You should go back to court NOW, and modify the 2008 custody order. You need to ask for joint legal custody, and modify physical custody to reflect your current timeshare or joint physical. I am not sure why you were denied legal custody, but you need to explain what has changed, and why joint legal is now appropriate. You should prepare a calendar outlining all the time you have spent with the child for the last 5 years, and specifically the last 2 years.
    If she passes away,the step-father could file for guardianship because he would have physical custody. If she passses away, you need to remove the child immediately. So long as the grandparents or stepfather do not physically have custody of the child, thely cannot file for guardianship.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is... more
  2. David Raymond Mahood


    Contributor Level 18


    Lawyer agrees

    Answered . You are in a very risky situation. If the mother dies before you file to modify custody, then you will be embroiled in a custody battle with the mother's husband and family, and you could lose. You must file for modification of custody based on the changed circumstances of your significantly increased time with the child. Your need a court order that you now have joint legal and joint physical custody. If you do not act immediately, then you stand to lose much, if not everything. If the stepfather gains sole custody, he could deny you any time with the child. So you must act now. I recommend you consult with an attorney for further details.

    This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with... more
  3. Christopher A Pearsall

    Contributor Level 9


    Lawyer agrees

    Answered . Attorney Jett's answer is excellent and I certainly agree with it. Typically if an ex-spouse has sole legal and physical custody of a child, as long as your parental rights have not been terminated and another person has not adopted the child then the remaining natural parent receives placement and custody of the child.

    However, I do not recommend that you wait. Attorney Jett has given very good and specific information that you should look into as soon as possible. You may want to consider speaking with Attorney Jett.

    Whatever you do, I suggest that if you care about your son that you take action now.

    Best of Luck to You in this very delicate situation.

    Disclaimer: This is NOT legal advice. It is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client... more

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