February 26, 2013,
C.H. asks from College Point, NY on March 07, 2007
Can I Leave My Child in My Mother's Custody Instead of Her Birth Father?
I wanted to file a will,just in case. I would like to know if anyone is aware of the laws regarding leaving your child to someone other than the birth father.
My 17 mo. old's father is included on her birth certificate and pays child support. We have never been married and he has never had custody of her. He hasn't been able to hold a steady job or have health benefits for years. I'd like my daughter to be left in the care of my mother, her maternal grandmother, as she is capable and can offer stability and financial security. My daughter also sees her "Omi"on a regular basis, which would make her a suitable source of comfort, forbid anything should happen to me. I wanted some input on this topic before I fill out any paperwork. Thanks in advance to any replies!
So What Happened?™
You all rock for offering your advice and insight. I don't trust the dad to be reasonable if I ask him to sign my baby over to me completely at this time. Although, I'm the legal custodial parent, I never had real reasons to exclude him from her life. He wouldn't be able to fight my mom for custody in court due to simple legal fees and related expenses. He's broke and lives out of state. I'm fairly sure he'd give my little girl to my mom if things came to that. I just know I want my wishes to be clearly stated in my will. For now, I'll just keep myself living to a ripe, old age!
B.F. answers from New York on March 16, 2007
I'm not sure what state you are in, but in Pa you cannot "leave" your child to anyone. You would have to have guardianship papers drawn up. Usually the courts want to do what is in the best interest of the child. Given that, it seems that your mother had a good relationship with you and does not see her father often. This is definitely a plus. Your ex always has the right to appeal this, but again, he has to show what is in the best interest of the child. The guardianship should be included in your will, but also as separate documentation since sometimes wills do not get read for quite a period of time. My biggest suggestion to you would be to see an attorney. It sounds like you are on a limited income, but Legal Aid should be able to help you either for nothing or for a small fee. Also, in Monroe County in Pa, and I assume this goes for other areas, you can call the local Bar Association and they will refer you to a lawyer for a consultation either for free or $25. Hope all works well for you.
K.B. answers from Rochester on March 09, 2007
HI C., I also did not marry my son's father, and he is also on the birth certificate and my son has his last name. Hopefully going to change it to a hyphanate on with my last name. Anyways, talked with my lawyer about gtting a will and he told me that I can name anyone to take care of my son and that if the father wanted he could go to court to get custody. Right now we have joint legal (such a pain). Make sure that your mom knows that if anything should happen to you, and the father ends up getting custody, that she can file for gandparent visitation. In my case, I know for a fact that if anything should happen to me, that my side of the family will never see my son again. Both of my parents passed away and the only family I have left are my brother and his family and an aunt and uncle and cousins. So make sure that she understands that she can file for visitation if he ends up with custody. Good luck to you.
V.F. answers from New York on March 10, 2007
i wanted to respond because i too was concerned about this matter. i am also a single mother and my ex is not a part of my daughter's life. but anyway....i work for attorneys, one of wich does estate planning matters. i posed this question to him & he told me that you can put it in your wil, but that the court does not have to honor it. The father can take it to family court & try to get custody that way. & then it comes to the point where the court decides who is best suited to care for the child & who the chld is comfortable with & hat not.
i hope this helps.
A.F. answers from Charleston on July 27, 2011
Right now im in the same boat. I have an 1yr old son and his father does nothing. His parents do all the work while he goes to work and spends majority of the money he makes on himself by drinking and going out. I just did my will because i cant stand the thought of my son being left with someone who is a child themself. I have audio recordings of our phone conversations where he states he didnt want a child in the first place and they are saved on file so if he were to ever challage my will because im leaving my son in my parents custody if something should ever happen to me, i know once the judges hears this he would lose! Document everything!!!
J.D. answers from New York on March 08, 2007
You can designate anyone you want in the will as guardian, but your Mom will be in for the fight of her life if the baby's father decides to contest. He acknowledges paternity, and pays to support the child. Unless you or your Mom can prove that he is a criminal, a drug or alcohol abuser, or a pedophile, the likelihood of a grandparent winning guardianship over a biological parent in our court system is really slim.
You can try talking to your lawyer and seeing if you can attach a letter of consent from him to designate her as guardian if anything were to happen to you, to show that he approved of that decision at the time it was made, but even getting that to hold up would be hard. Our courts really want kids with their biological parents, and it will take a lot to keep him from getting her if he decided to fight for her. Would he do so? Have you talked to him about it? He may know that he's not in a position to raise her full time, and wouldn't fight. You never really know until it comes up, though.
M.H. answers from Syracuse on March 09, 2007
you can leave custody to your mother but the father can still take the case to the courts and fight it and could still end up with custody but it would be up to the judge by then. Here is a number of a guy,Chris he is here in Syracuse,that helped me with legal questions and situations dealing with the custody of my children.1-877-817-8220 (its his voicemail but he will get back with you quickly)
K.D. answers from New York on March 11, 2007
What I have heard is that your preferences will be taken into account, but ultimately the father has the right to appeal whatever decision is against him getting custody, and a DCF or social worker will evaluate the situation and unless the father is completely incompetent or unable to care for or doesn't want the child, the father will end up with the child. Sometimes that's a very unfortunate thing, but that's the way it ends up.
A.D. answers from Burlington on March 09, 2007
I've been where you are with my son's father. We got married two years ago and our son is 6 years old.
I know the family law like the back of my hands I know that it doesn't matter if the father is on the childs birth cerfificate or not or that he pays child support or not if your not married the mother as full custody of the child unless the court says other wise.
Iam 32 years old and had my first baby when i was 18 second when i was 19 and my youngest when i was 26 years old I lost custody of my two older chilldren 10 years ago because of drugs and Alcohol. I've been clean 10 years and sober 4 years was sober 2 years and had a relapse.
My 6 year old son means the world to me and would never want to give himup for nothing,
Iam not rich by any means but i leard that as long as i and my son have food in frig sometimes not alot and a roof over our heads thats all we need. The rest will follow in time.
My son loves me and I love him there isn't anything i wouldn't do for him something is better than nothing when it comes to bills and food and all that.
I feel for you I really do I atenify so much with what your going through. If you feel your child belongs with your mother and you feel you can't raise her the way you want to raise her. Do what you feel is right go to court with your mom sign over custody.
But from one mother to another thats been there Look in that babies eyes and she will tell you by that look where she belongs. I thought about when my son was about a year old letting my sister adopt him because i was going through the samething you are right now I looked at my son one day and said to myself what the hell am I doing? He is my child Iam his mother there is going to be hard times and thats life but my job is taking care of that baby the best way i can. I lived on welfare child support food stamps i made it. I had to be strong for him. I borrowed mony from family and friends it sucked but i had my son and we where together. So in my eyes even though i can't pay bills sometimes andthings get hard i remember i have my child Like i said i lost custody of two children and iam not willing to lose another.
My prays are with you. Go by your heart not your head they always tell us something different.
N.M. answers from Rochester on March 09, 2007
unfortunatly, your daughter will go to her father. I"m going through the same thing, and my son's father gave up his rights, but if god forbid something happened to me, he would go to him. I have a will and that won't mean a thing when it comes to my son if i die. He will be forced to go with his father. Try and get paperwork started for your mom to be a guardian of your daughter. It may help your case. I"m in the process of doing that, at least until i get married and my fiance adopts my son. As sad as it is, the system thinks that the father should have equal rights regardless if they help you pay for the child or help you raise the child. It makes me sick to think of it that way, but good luck! But seriously look into a guardianship. have a good one.
A.B. answers from New York on March 09, 2007
I don't know the legalities but I do know my mother did that for my brother & me, (but with my Aunt not my grandmother). Fortuneatly we never had to test her will. My mother felt, it would give my Aunt & Uncle a fighting chance at custody. It can't hurt to put it in your will... at least your wishes are down on paper.
D.K. answers from Syracuse on March 09, 2007
Depending on the state you live in. In NY state You just need to state it in your will as you did here.
H.Z. answers from New York on March 09, 2007
Does the father ever see your daughter? Does he have visitation rights? I am in a similar situation and have been told that as long as the birth father has not given up his rights, or has been denied visitation by a court, then he would most likely get custody, or at least be given the option. If you do write your mother in, and the father chooses to fight it, it could be an ugly custody battle. Is there any hope in the father agreeing to your mom having custody, if he was granted similar visitation as he has now? If he does, that would be your best bet. Situations like these are never easy (it is the main reason I buckle my seat belt every day!!)
H., Single mom of 3 year old girl.
D.R. answers from New York on March 09, 2007
I think if you have a will and it states in the will who you want the baby to be left with they have to go by that. He can try to fight it in court but I am pretty sure they have to go by the will.
R.R. answers from New York on March 09, 2007
I know that from someone else's experience, even though your child is living with you, you have to go and file for custody for your daughter to be considered "In YOUR custody". I would call and ask someone at your Local or County Family Court as to how to go about that. Then I would proceed with your will. Depending on your income, you may also be able to get Free Legal Counsel through the County also, and I'm sure that they would probably be of great assistance in helping you with your will!
K.R. answers from New York on March 09, 2007
I believe that as long as her father is still alive he has the rights to her. You can always put your requests however you want in your will and if he chooses not to fight it than your wishes shall be carried out. You should make it read something to the effect that you are leaving whomever as her primary care giver and custody arrangements to stay the same. You should double check with an attorney first. There are free websites where you can ask general question and get quick legal advice. The internet is definately the cheapest tool for that situation.
K.F. answers from New York on March 08, 2007
C., IM A 31 YRS OLD FEMALE AND I HAVE A 12 YR OLD DAUGHTER..
I WAS IN THE SAME SITUATION YOU ARE IN NOW....AND THAT QUESTION WOULD ALWAYS POP IN TO MY HEAD.....I NEVER MARRIED MY DAUGHTERS FATHER NOR LIVED WITH HIM....I LIVED WITH MY PARENTS TIL I MARRIED MY HUSBAND NOW....BUT IF ANTHING WOULD HAPPEN TO ME I PROBABLY WOULD HAVE MY DAUGHTER LIVE WITH MY PARENTS, NOT BECAUSE I DON'T TRUST MY HUSBAND....HE HELPED ME WITH ALOT....YOU WILL HAVE TO DEFINITLY THINK ABOUT YOUR DECISIONS....IT'S A LITTLE DIFFERENT BECAUSE YOUR CHILD IS SO MUCH YOUNGER THAN MINE.......IF YOU NEED TO TALK TO ABOUT ANYTHING FEEL FREE TO EMAIL ME....
A.A. answers from Salt Lake City on February 26, 2013
Go ahead with the paperwork. You are the one with custody. You make the decision on what is right for your children. I have done the same thing with my Momma. Really I have heard as long as you write it up sign and get it notorize it. All is legal. Good luck
K.M. answers from Syracuse on March 08, 2007
As long as your daughter's father is still living when you die it doesn't matter what you put in a will. He would be the one given custody unless he is proven unfit. Unfortunately it doesn't matter how much he sees her now. The only way to make certain, without a doubt, that your daughter would be with your mom is if you have the father sign over his parental rights. I would assume though that since you are a single parent you need the child support. If he's happy with the way things are now then you may be able to get his sign some sort of legal paper that would give your mother custody in the event of your death, but would still give him visitation should he ever choose to see his daughter.
M.L. answers from New York on March 08, 2007
I don't have a mom I can trust. She's non-supportive, and just flat out doesn't like me. If I were you, with a mom that is loving and supportive, I would leave my child to her. Please understand how lucky you are to have that luxury. I have two boys, and I have to trust their father to care for them, in case something happens to me, because I can't trust her.
K.M. answers from New York on March 08, 2007
Find out from the lawyer who you'll be filing a will with. I have a feeling the birth father may need to consent to that. But, I'm not sure.