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My son is divorced, he has sole legal custody and he and his ex share legal custody.

Westport, MA |

They live in my house and I have been "mother" to the children for 4 years. They are well adjusted at home, in school, and 2 GALs have determined this is the best place for them. If my son dies what are my chances of getting custody of them? Mother is phycologically abusive and sees the children when it is convenient for her. I feel they would suffer drastically if they were removed from their home. They are 6 & 9 years old.

Attorney Answers 3


Complex question. You would have to petition the court for guardianship.

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Check out the link to this document and read section 5-202 (Parental or guardian appointment of guardian for minor) for information regarding the appointment of a guardian for the children. Also, judge's are inclined to award children to stable caretakers as opposed to awarding custody to abusive, absent and unstable parents. It may be a good idea to keep a journal noting the mother's inconsistencies, absences from visits and unusual behavior. (Note that the children should never be allowed to be with a person who is physically or psychologically dangerous to them.) Finally, your son may consider drafting a will and naming you within the will as the guardian of the children. Parents also have the opportunity under G.L. c. 190, section 5-103 to appoint a temporary agent to take care of their children for a period not to exceed sixty days. If you haven't done so already, try and speak to your son and the mother to come to some sort of understanding should your son predecease you and the mother.

None of the information or materials posted above is intended to constitute legal advice. Viewing this and any response to a question does not constitute an attorney client relationship. Local counsel should always be consulted before contemplating or taking any legal action. Any reply given to any question is general in nature and should not be undertaken without the express advice of a retained attorney of your choosing. Attorney is licensed to practice law in the Commonwealth of Massachusetts. Most responses are based on Massachusetts law and or any other response is intended to be only an educated response, and not the legal opinion of the author. Any response given is not intended to create, nor does it create an ongoing duty to respond to questions. The person asking the question should independently verify the accuracy of any response.

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2 lawyers agree


I would imagine that you meant to state that your son has sole "physical" custody and has shared "legal" custody with the mother. As 2 GALs have made recommendations supporting your son's position, your son's physical custody stake seems to be secure. This security becomes stronger the longer a particular arrangement exists and the children are happy and safe

As for what would happen if your son were to die leaving you and the biological mother as the two options , it is difficult to determine without looking at the actual GAL reports. Specifically, an attorney would need to review the reports to determine the mother's deficiencies, the court's concerns regarding the mother and what she has done to address these concerns. Ideally, a judge prefers to see a child eventually be reunited with a biological parent as long as that parent could show fitness.

Another attorney has suggested that your son and you create a will appointing you as a guardian. According to the U.S. Constitution, a biological parent has a right to raise a child as he or she seems fit. Accordingly, these will provisions would not accomplish much. Unless it is proven that a parent is unfit, custody of the children would go the biological parent. If your son were to leave the children's property in his possession to you in his will, that should be enforced by a court.

In order to prevent the mother from gaining custody upon the death of your son, you would need to file a petition for guardianship. Again your success in your petition case would be based on the dangers that concern the court and what mother has done to address those concerns. For example, if the mother had a drug issue, but has taken a parenting class, has passed all drug tests, supervised visitation or unsupervised visitation has gone well, etc... then your case would be much more difficult. However, if mother has failed numerous drug tests, the children's safety and happiness has been non-existent during mother's visits or mother continues to skip visits altogether, then your case would be easier.

Bottom line, mother, by her actions or lack of actions, will either do all of the work for you in your desire to gain guardianship or would make it extremely difficult for you to obtain guardianship if she gets her act together.

The content of this answer should not be relied upon or used as a subsitute for consultation with professional advisors and it should be clearly understood that no attorney-client privilege has been created. A more complete answer and/or more accurate answer can only be provided in a more thorough examination of the facts in a consultation with my firm.

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Robert J McCarthy Jr

Robert J McCarthy Jr


Having spent a good portion of my career litigating termination of parental rights cases in the trial court, Appeals Court and SJC I’m well aware of the body of case law dealing with parental rights. My answer did not suggest that a will would completely resolve the issue, but a will is well worth consideration. Read the Massachusetts Uniform Probate Code (which was recently adopted) that clearly states: “G.L. c. 190B, section 5-202. [Parental or Guardian Appointment of Guardian for Minor.] (a) A parent, by will or other writing signed by the parent and attested by at least 2 witnesses, may appoint a guardian for any minor child the parent has or may have in the future, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.” Can a father terminate the biological mother’s parental rights via a will? No. Can a parent appoint a guardian via a will? According to the Massachusetts Uniform Probate Code citied above, absolutely. At the very least, appointing a guardian in a will and explaining why the father desires this guardian, is a written, witnessed, legally formal document indicating that the father does not want the biological mother to have custody. Also, what happens if the mother predeceases the father (or somehow the biological parents die simultaneously in an accident) and the father did not have a will naming a guardian? A lot of trouble for the children and a lot of time, trouble and expense for the proposed guardian that was never named in the will.

Todd Allen Davidson

Todd Allen Davidson


In the examples that you provide and other scenarios, it absolutely makes sense to put the guardianship provision in the father's will as it will either have no effect, some effect or will effectively allow the father to pick out the new guardian. Even if mother is not declared as unfit, she has already shown herself to be indifferent to parenting and such a provision in the father's will may help get the ball rolling for the grandparents. In addition, as mother seems to be irresponsible and indifferent to parenting, there is a good chance that she may be engaging in other risky activities that makes it very likely she would predecease the father. I didn't mean to imply that putting such a provision in the will is not a good idea, just that it would necessarily determine who will have custody/guardianship if the father were to pass away. It was my mistake in drafting that made it appear that I was criticizing your answer when I should have added your suggestion to my paragraph about the U.S. Constitution.

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