I have sole legal and physical custody, visitation is soley at my discretion.
My question is this, what is the best way to make sure my son will stay with his step father if I should die? We have been married for five years and my child lives with us full time. Mental state of the bio father is unknown, so we have no idea if he will contest or agree to either. Is guardianship easier to get in California than a Step parent adoption? Bio father has not seen his child in three years, however has paid minimal support because it is deducted automatically from unemployement. Unemployement just ran out by the way.
Family Law Attorney
I don't know if a guardianship is easier to obtain that a step parent adoption. On the adoption side, If your child's step father wants to adopt him, you will have to get the father's permission or file and have a judge grant a petition to terminate the father's parental rights.
Feel free to ask me any questions. Good luck!
You should always consult an attorney for advice regarding your specific legal situation. This answer does not constitute legal advice and no attorney-client relationship is created. Answers to your questions do not create an attorney-client relationship.
A guardianship can only be granted if it is "necessary." With you alive, and the child with you in your home, there is no way to get the court to find that appointing your spouse as guardian is necessary. If you passed away, at that time your spouse could apply to be the child's guardian, but he would have to notify the child's father and it could be contested.
A step-parent adoption can be done, but to do that the rights of the child's biological father must be terminated. If he consents, great - you can do it. If you are not certain of his consent, under the facts you have provided above, it is unlikely that you could prevail on an action to terminate his rights, because he has not technically abandoned the child. "Abandonment" per statute is failure to visit or support the child, left with the other parent, for over a year. If he has stopped paying support recently, I would suggest marking that on your calendar and waiting out the year.
Since I don't have ALL the facts and an extended question-and-answer session is not best handled in an on-line forum, I strongly suggest that you and your husband go see a local, experienced family law attorney who also practices adoption. Though adoption is under the family code, many family law attorneys don't practice adoption - so, ask that question before going for your consultation. That attorney will be able to ask you a variety of questions and, based on your full and complete answers, should be able to give you more definitive legal advice.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.
Estate Planning Attorney
A guardianship would not help you so long as you are alive. A guardianship is granted where neither parent is able to care for the child and the guardianship is in the best interests of the child. If you pass away your current husband could seek guardianship over your son, however the biological father would be notified and could seek to establish his rights. The more appropriate course of action would be to take steps to terminate the parental rights of the biological father and move towards a step-parent adoption.
The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice.
Your son's stepfather can apply for adoption. Since you are the custodial parent, you must consent to the adoption. Your ex must also sign a consent form declaring he is terminating his parental rights over the child. If your ex does not want to sign the declaration, the stepfather can file a petition to terminate the parental rights.
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Legal Disclaimer: The answer above should not be relied upon as legal advice. The information provided above is based on insufficient facts. No warranty is provided that the answer is correct. No attorney-client relationship has been formed with me until a signed written contract is complete. For an official opinion, it is advised that you seek legal counsel.