Who Would Raise My Daughter

Great that you are thinking ahead. So many people put this kind of thing off and it can be horrible for the children and your extended family too. I do want to make clear that there are no longer common law marriages in California. I am an attorney and have done both family law and estate planning, and I strongly recommend you get these things sorted out while you can...no time like the present, while you aren't really having problems about it. The court would look at her biological dad because it does not sound like he has had any rights terminated. If he didn't want to do it, your current partner could petition for that role, but it could be difficult. The court could also look at grandparents, aunts, uncles, etc. It would be much easier if you figured out who you wanted and put it in writing, even if it is just a friend that you really trust. Given your circumstances, you may want to talk with an attorney because it is likely to be a little complicated. I personally prefer trusts over wills for estate planning, but that is a personal choice. Good luck.

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I think we've all had those morbid thoughts at some point...how can you not? First thing you need to do is really think about who amongst your family and/or friends would and could take care of your kid(s). And have a serious walk with the one(s) you choose and see if they'd be willing to take your kid(s). In my family, I have a middle sister who has 2 kids that are same age as mine and between her and her husband, they balance each other in their parenting style and they're both very well educated and have great jobs and they both agreed to this monumental decision.

With that talk out of the way, as soon as my boy was born 4 years ago, my husband and I went online and completed a will (or was it trust?) and it was very easy and cheap (compared to attorneys). Check out www.legalzoom.com. Now that I'm expecting my 2nd, we'll be updating our will but should anything happen to me/us, I know my boy(s) will be taken care of. Good luck.

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Dear “Kinda Married”,

If your “kinda husband” doesn’t love your 9 year old and wouldn’t be willing to take care of her if something happens to you (since her natural father is seemingly out of the picture)…. I’m “kinda” wondering why you’re with him in the first place?

Your two children should not be treated differently. If they are it will cause a lifetime scare on your older child. For her sake, if her natural father is not an abusive or dangerous person, you should keep track of him and let him know about his daughter. The same goes for his family. At the very least you daughter should know about him, see pictures of him so she doesn’t grow up wondering. Your daughter has the right to know about the other side of her family. It may not be the appropriate time right now, but please keep track of him for her sake.

Stop worrying about your possible “passing” and start thinking about your present situation. If you feel your children will need a legal guardian and the guy your with isn't that person, put your wishes it in writing. (Will or Living Trust).

Blessings…….

PS…. Make sure you not at the airport when your ship comes in!

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A simple holographic will will suffice and save you a trip to the lawyer (heard about it from Len Tillem on KGO).A holographic will is a will that is completely handwritten and signed by you. Here is the details from Wikipedia: http://en.wikipedia.org/wiki/Holographic_will. If you are unsure about how write it you can email Len Tillem at ____@____.com and I am sure they will get back to you. Hope this helps!

Regards,

Shelly (mother of two great boys, ages 13 and 16)

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It sounds like you want to keep your family in tact, which is always best, and what your daughter is accustomed to. One option you should consider is having your current husband adopt your daughter, and the best other options is to get married and do a living trust. You really should talk to an attorney though, because these things can get very messy and you don't want your daughter to become a ward of the court while things drag out.

Good luck.

I think it is good that you have had that thought. I recently went thru some stuff in my family and you would be surprised at what the courts may do or not do. (it is a long story, but you have to trust me on this)

If you want step-dad to have rights, then you need to put it in writing. Or if it is someone else, you need to put that in writing. I know it can be expensive, but do a will or living trust to have your wishes known.
S. Garrity
Tracy Ca

I think that it is important for you to allow yourself to feel your feelings but keep the focus on yourself and the here and now and being competent in your current child rearing practices. If you feel worried seek counseling first.
L. Vahle, M.S., M.F.T.

Contemplation...nothing like parenthood to force those thoughts. I spent my bed rest with my second child doing our revovokable living trust, prepping on my own and then having a specialized lawyer complete. It is interesting as to how many people do not have these affairs in place...It is never ideal but a plan is often better than none, even a flexible plan, wishes for her, things people should know about her...sensitivities, allergies, learning styles, relationships that matter to her, passions, concerns,,things to watch out for...and for me, I have a letter of love I wrote the one and only time I left on my own.just in case but for sure.it is written and someday they will read it...I looked high and low for a letter I saw my dad writing to me when he was in hospice but it was destroyed by someone ...be sure to have everything documented...I was my dad's only heir...and all was fine but some details that did not make sense got changed shortly after..it is as important to plan for when we are gone in a way as it is for when we are here...we plan when we are prengant, we plan vacations and this is a most critical contemplation

Is your husband willing to legally adopt your daughter? If so, then do it. He is the only father she has known on a regular basis, yes? The other option is to find one of your siblings or friends/godparents and grant them legal guardianship through the system if anything were to ever happen to you. I am glad you are thinking of your child's future, even if nothing ever happens. It is better to be prepared. My parents had a set up with god parents for my sisters and I. They lived in another city, but when we were younger, we stayed with them to get to know them and were told that if anything should every happen to our mom and dad, this is where we would live. It was a good experience, and they stayed with us. They wanted us to know that they would never leave us willingly, but they also wanted to make sure we were always cared for.
Hope this helps.
-E. M
P.S. Not to worry, your ship will come in soon enough!

You should have a trust written up and you should state your wishes in a trust. It seems in your case because the step-father has a relationship and the real father doesn't - the courts may uphold her the child going to the step father if you specify it in a trust. Also, have you considered having the step father adopt the child, to make it official and resolve this kind of issue?

Unless you have a lot of money, and/or don't like the way in which your estate would be distributed under state law, you don't need a will. If you have a will, it has to be probated at your death, and that costs a fat chunk of whatever you were passing on, and it can take forever. Get the Nolo Press book on Wills and Trusts before you spend money on an attorney. Nolo Press is an invaluable resource. They publish handbooks on the law for non-lawyers, and they can save you BIG bucks. They're located on 9th and Parker Streets in Berkeley.

You can't actually decide who will raise your child if you die or are incapacitated. The court makes the ultimate decision. What you can do, and should do, to have some peace of mind, is to write out your wishes under the title "Nomination of Guardian for Minor." You can either name the person or persons you would want to become your daughter's guardian, or you can designate certain people, family and/or friends, whom you would want to make the decision as to who would be the best person to be nominated as guardian, given the circumstances at the time. (This kind of provision helps cover the situation where the person you nominated as the prospective guardian is, for some reason, unable to do it at the time.)Again, the court doesn't have to follow the recommendation, but it gives it a lot more weight. Put this document with your important papers.

You might also want to pick up a Nolo book on family law, because even though your daughter's biological father has never seen her, or cared for her, he still has parental rights simply by virtue of having fathered her. You may want to get him to give up his rights so your present partner can adopt your daughter.

The other thing you may want to do is marry your present partner. There is no "common law marriage" in California, and if he dies, you won't get any social security assistance to help you raise your younger daughter. If you marry him, and he adopts your older girl, then if he dies, you will receive social security for each child, and, believe me, it makes a big difference.

Hi T.,

I think you should seek the advice of a family law attorney and have a living will/trust made for you and your children. We had a couple of different scenerios put into ours - such as if one guardian could no longer care for our daughter another guardian would take over. We also have contingencies for schooling and when they may receive any inheritance money. It's a sad thing to think about but knowing your children are well cared for eases the stress.

J.

My husband FINALLY did his will when my first son was 4 months old. Talk about a blood bath of a chore for him to do. UGH! When it came to who would care for our son in the event we both passed together, he picked my mother and a close friend of his who is our son's god father. However, he is 60 plus and lives super far from my family. Meaning my father, brother. We then talked about havivng one of our siblings to care for them, that turned into a bigger fight. His sister is Bipolar lives with her 81 year mother at 48 years old and has no money. I told my husband I would want my brother who is 5 years younger them me and is going through rehab for drinking but my dad would give him money to take care of them. My brother is younger and loves his nephews dearly. I look at it who can finaciallyl support our child. My dad is very wealthy but would not want the responsability to raise his grandson. In any event, at 14yrs old they can decide where and whom they want to live with anyway. People can also go to court and argue the matter regardless of who is on file to be their sole provider. I then did a will of my own and put my brother down should my mother be too ill if that happens or our friend in the same position. they can turn to my will as a back up. We now have 2 boys and in any event my father would step in if had to and take over. Make sure you look at all your family members first before giving that position to somone who may not want it. Its not something we want to discuss but something that needs to be documented.

SAHM, 40 with 2 funny little boys. 3.5yrs and 11 months.

Hi,

Yes, you definitely need to get a will and specifically state who you would want to have custody of your child. Of course, the father could fight it, but he would have to prove to the court that he was worthy, and since he hasn't been a part of your child's life for the past 5 years, that wouldn't be easy.

Good luck!

Definantly do a will. My mom died when I was 2. She was only 27. Bad things can happen at any time. We can't live fearing the worst, but I think we should at least be prepared for it.

Hi,

Good for you for thinking of this and doing something about it. I agree 100% with Amber (poster 2 posts down) - do it and pay the money for an attorney to do it properly since you have a "special" situation. It's no fun to fork over the dough but you will truly be comfortable knowing that all the proper channels were taken and everything will be in place should it be needed.

Best of luck!

Could your 'husband' adopt your daughter? Either way, you might have to get her bio dad to sign away rights. Asking him to do so would let you know where his head is at surrounding this issue. I think you are smart to be thinking about this now!

It's good that you are thinking about this now instead of waiting til it's too late and then who knows what could happen to your daughter. My husband died and it occured to me that if something were to happen to me my children would be in turmoil. I got a will stating who would be guardian of my children and if that person could not do it for whatever reason I named a second choice. You have to think of a couple of things, 1. whoever is to be guardian will get payment in the form of Social Security Survivor Benefits for your child until your child is of age, so you want to make sure that person is there for your child not just the paychecks. 2. Any insurance you might have could go to that person as well.

Does she know her biological father well? Not sure what kind of rights he has since he is not on her birth certificate. Is your common law husband the only father she has ever known? Would he be willing to raise both girls even though she is not biologically his, which would probably be best because then both girls could stay together. Your common law husband would not get his own Social Security Survivor benefits because you are not legally married so all of it would be split between your 2 girls equally. If you were to get married then it would be split 3 ways. I never thought I would have to think about such things but I didn't expect my husband to die so young either so the responsible thing to do is to get it in a will so there is no question.

You might want to consider doing your will online. Then you print it out and take it to a notary with your three witnesses. If it's a simple will that might be the way to go. It only cost me about $50 as opposed to hiring a lawyer. Just a thought... :)

Hi,

NOLO Press has great books (at the library) about wills. They come with a cd. Pop it in, fill in the blanks. The book describes the rest as far as having witnesses and is easy to understand.

Do you know of Sandra Lee on Food Network? I saw a chef-ography about her and her story is something like this: As a teen, her mother died. Step father couldn't/wouldn't keep her. She was separated from her half-siblings and sent to live with father/father's family whom she didn't know.

Good luck!

We're right in the middle of making a family trust and wills right now with a lawyer. We'd previously just done computer wills with the basic info using the Nolo Press books and Quicken Family Lawyer software.

Picking a guardian for your kids is HARD! Thankfully my husband and I agree on who, and equally thankfully the first and second choice people have agreed.

Things we thought about: do they have similar morals / values in life and childrearing?, do the kids like them?, would the kids blend into their household? We ultimately picked a family member first and a family friend second. We had 3 additional siblings and 3 grandparents to choose from for second choice, but they didn't fit the criteria for us. It's not a decision to make lightly and it's NOT set in stone. You can change it at any time. Our lawyer stressed there is NOT a set default, although family members are preferred and the judge could pick anyone who makes a case.

Greetings T.: I had to think about this one because we have had some of this happen with in our family recently so I want to share some of what we have learned the hard way.
But first let me tell you that as a parent you have the right to have inspiration for the needs of your children. My 5 children knew that at times I would feel something and I learned to follow that spirit quickly and more than once I was there when a child needed me and had not called to tell me what was going on.Even now as they are adults we sometimes have this happen.
1. Common law marriage has been out lawed in many states so you had better know what yours says other wise you are just living together. We learned the state will call it as they see it. They will check how you file your taxes.
2. Just because you are living together does not mean anything in some states (or if you are out of the country).
The blood lines are what matter. If the child's birth father has ever paid a dime( or not), if he has ever been revealed or is known then He is given the child until other things are sorted out. If the natural parents - parents (grandparents) have been in the childs life then they can claim rights over a boyfriend/girlfriend. In our case as only a foster parent I can't get leagal rights over a birth parent without everything in writting, noterized and copies given to all that would be involved and an agreement in advance from the parent not there.
3. Since not married then social security benifits may not be provided - that will have to be determined by who gets guardianship is what we have been told.
4. Since there is another child invloved the first parent doesn't always take the childs needs into account that they don't want seperated from a sibling.
5. You have the right and responsibility to protect and care for your chhildren and since this has "inspiration has poped into your mind" for what ever reason act on it. You can get a will , trust all with letters of intent. This will not be read until after the funeral services but you can have it well known in your family even signed by members if you wish that a letter of intent is being held by so an so to be read upon anything happening to you that requires care of your children. This can state WHO YOU DO NOT WANT YOUR CHILDREN WITH AS WELL AS WHO YOU DO WANT THEM WITH.
6.We have learned that it is important to state clearly why you want things done this way. so Your wishesare respected. This may make you think that your ship has just sank but it is clear that you now have information from several sources to make a good decision so you can't say you don't know and don't know where to start. Remember this adventure of parenthood is a joyride like no other and filled with many twists and turns so I wish you well
Nana G

Just so you know, common law ceased in California many years ago. You are right, step-dad does not have legal rights. The courts could do any number of things and I believe that they would look to family before putting your child in foster care, but if no one is suitable or able, they will place your child in foster care.

Yes, you need a will. Even with a will, there could be a custody battle if the real father comes forward to challenge the decision you made without him, but at least there is a legal document stating your wishes. Do you want your boyfriend to adopt your first child and then he would have legal rights to both children in the event of your passing? You may want to contact the bio father and get a waiver of rights so that whatever decision you make won't be challenged.

Obviously you need legal counsel, and hopefully you will live to a ripe old age well beyond grad school!! Good luck.

Definitely get the living will/trust to ease your mind. My husband and I did it last year and the best part is we don't have to think about it anymore unless we want to change it at some point. Our lawyer offered us 1/2 hour consult every year to tweak it if we need to. Just do it so you can know exactly where your child would go.

If you should become incapacitated or pass away, the probate court would settle the issue of guardianship. You should contact your county's probate court and see if they offer free legal advice regarding this issue. It depends a lot on your court's "culture" as to how the issue of guardianship is determined: some judges feel that the biological parent is best, others will view the step-parent as the de facto parent and will grant guardianship to preserve the family unit (especially when half-siblings are involved). Either way, if you do not spell this out in a will (which does not have to be lengthy or fancy; you might check out Nolo Press for drafting a will), strangers will decide this matter for you. Since you are thinking about this, you should also give some thought to who you would choose to raise both of your children in the event that both you and your partner pass away before they are adults.

This is a really hard subject -- my husband and I are planning to draft our wills within the next three months for just this issue -- but it is so much better to have planned for the unlikely than to ignore the possibility altogether. Good for you for taking this matter seriously!

Good luck.

I highly recommend going to qvc.com and ordering the Suze Orman will and trust kit. It is awesome. My husband and I went through feeling like we needed to get our affairs in order - just in case. But, we couldn't afford lawyer fees. The kit was around $50 and it is so awesome - it gives you a CD ROM to do your will, trust, medical power of attorney and financial power of attorney. We filled them out and got them notarized and we are good to go! She walks you through how to put your wishes down and the legality of it all. Don't put off doing a will - you never know what can happen. It's the best gift you can give your daughters.