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. http://www.massprobatecode.com/article-v/ 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.
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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.
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