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SOLE LEGAL AND PHYSICAL CUSTODY, Do I determine gurdian if I were to die

Jacksonville, NC |

Hello, I have sole legal and physical custody of my child with down syndrome. If I were to pass away does her dad get her automatically or can I appoint my mother guardian in my will? We live a few states away and he does get visitation with her but he is a alcoholic

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Attorney answers 3


You can not dispose of a child as if they were property in a will. You can certainly express your desire in a will but it will hold no legal weight. Basically, father will automatically get the child. If however, the father is unwilling or unable (due to alcoholism) the Court can be petitioned by whom ever you designated in your will to establish themselves as guardian. The Court will most likely do their best to adhere to your wishes expressed in your will but ultimately the Court will decide what is in the best interest of the child. You will want to consult with an experienced family law attorney. It may be the case that you can set something up to determine custody of the child prior to your death but it won't be guaranteed through a will.

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I agree with Ms. Houser. In order for you to be able to appoint a guardian under your will (and have it stick) is if you had the father's parental rights terminated. While alcoholism is definitely bad, I do not believe, without more, it is sufficient to terminate one's parental rights.

Fred Amos provides legal representation in Wake County , North Carolina. Any answer provided through this discussion board is a general response to the question and NOT intended as legal advice. Responding to this question does not constitute an attorney-client relationship. Always seek the advice of a lawyer directly to address your specific circumstances.


I agree with the previous answers, but you can express your desires in your will as afar as a guardian is concerned, which would at least make sure your wishes are known and which would also give the guardian standing to contest placement with the father if the issue arises.

At the same time, if the other parent is not visiting or providing support your may want to consider proceeding now with an action to terminate his parental rights.

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