Spouse passed last year. Her two children (now teens) resided with us for past decade ~30% visitation with father
1. Spouse's will specified children remain in current living situation. The biologic father declared control - permitting some visits Does will have bearing on children's living situation?
2. The children explicitly expressed desire to remain in previous arrangement. Do their wishes have no formal bearing?
3. We had tax exemptions for children - filing married-joint. Father now claims tax exemptions stating time spent in family home after mom's passing equivalent to "staying over with friends" & not additive to the time when mom was alive. If it were counted, the ratio would be 60:40 me. Does this time with me permit exemptions on 2013 married-joint tax filing?
Divorce / Separation Lawyer
First, the children generally do not get to pick where they want to live. Sometime if the children are of suitable age and discretion, the desires of the children can be one of the factors considered, but it is not controlling.
Second, with mom dead, unless there is something really wrong with the father, the children are going to have to go live with him, if he wants them. Basically, you are in the position of being a third party asking for custody if you want to keep the children with you. That would mean going into court and proving the father was unfit.
Family Law Attorney
In WA, when one legal parent dies, the surviving legal parent is the only person with parental rights to the children unless the court finds or has found the surviving legal parent to be an unfit parent.
If the father has been getting "30% visitation", he likely has not been nor will be found to be an unfit parent. Legally, he can just come over and take the child to his home.
Children are not properties. So, what the mother provides in her will has no bearing what happens to the child.
In WA, until the child is 18 or otherwise emancipated, the child is subject to the legal control of the legal parent. Where the child wants to live is irrelevant if the parent does not want the child to be there.
The stepparent may possibly convince the court to place the children with the stepparent. However, the proceeding likely will be very difficult for the stepparent.
You can have the IRS determines who should claim the children as tax dependents. If the father files first, you would not be able to electronically file your tax return. However, you can submit a paper return. If you or the father does not withdraw the claims, the IRS will determine who should be able to claim the children.
The children may be eligible for Social Security benefits based on the mother's earning history. The children may be eligible for other benefits.
You should review the specific facts with your attorney to find out your legal options.
Family Law Attorney
I am sorry for your loss. The biological father normally has a right to custody in such a situation. However, it seems (after 10 years) that you may have such a close relationship to the kids that you are their "psychological father". In some cases a non-parent can actually get custody. See my AVVO Legal Guides on non-parental custody for more information about the legal issues raised by your inquiry. Please keep in mind that although my AVVO Answers and Legal Guides are often informative, they are no substitute for legal advice from an attorney you have retained for consultation or representation. There are always exceptions to the general rules. To find my Legal Guides, click on my photo. On my AVVO home page click on "Contributor Level - View Contributions" or scroll down further and click on "Contribution - Legal Guides." Scroll down the list of my 32 Legal Guides and select the topics relevant to your question. If you like my answer and Legal Guides, please make sure you mark them as “helpful” or “best answer”. © Bruce Clement
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