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If I was to have a regular or a living will assigning custody of my kids to my parents, would that hold up in court?

Additional Information:

I am a single, unmarried mother of 2 children who’ve always resided with me. Their father doesn’t have a relationship with them (2 & 3 years old) and he lives out of state. He’s 34 and can’t support himself (lives w/parents rent free and is still struggling), much less to provide for our children and his two older kids. God forbid something was to happen to me, I would want my parents to have custody of my children. I would hate for them to be taken away from the only family that they know and sent out of state to be raised by him who has little to do with them and can’t support them. If I was to have a regular or a living will assigning guardianship of my kids to my parents, would that hold up in court? Or would custody automatically go to him because he is the biological father?

ATTORNEY ANSWER:

I recommend you have a will prepared for you in which you appoint your parents, together or the survivor, to serve as guardian of any minor children of yours at your death. If the father of your children predeceases you, assuming your parents (or the survivor) are living and fit to serve as guardian of any minor children of yours at your death, then the probate court will probably appoint your parents accordingly. However, if you predecease the father of your children, he will have the right to seek custody of them. Even though you can’t prevent the father of your children from proceeding as such with respect to physically custody of your children, through a will, you can make sure that in such case he will not have control over any of your assets at your death as guardian of your children. Through a will, you can name your parents, together or the survivor, as trustees of any assets that you leave to your children at your death. By doing so, your parents, not the father of your children, will be able to control the assets you leave to your children.

The Beliveau Law Group: Massachusetts | Florida | New Hampshire

The attorneys at The Beliveau Law Group provides legal services for estate planning (wills and trusts), Medicaid (planning and applications), probate (estate and trust administration), business law (formation and operation), real estate (residential and commercial), taxation (federal and state), and civil litigation (in connection with these practice areas). The law firm has offices and attorneys in Naples, Florida, Waltham, Massachusetts, and Salem, New Hampshire.

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