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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 03-25-2008, 09:19 PM
country girl country girl is offline
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Default death = custody???

I am getting ready to do up a will and want to know about custody. The ex hasn't seen our son in 4 months but has been paying support therefore I have de facto custody. So if I die does that mean that the ex will get custody even if I name a friend as my son's guardian?
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Old 03-25-2008, 09:39 PM
logicalvelocity logicalvelocity is offline
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country girl,

defacto custody means that you have the authority to act since the child lives with you and the other parents authority to act is suspended but NOT ended. Both parents still have the same standing to be equally entitled to the incidents and responsibilities of custody until a separation agreement or court order provides otherwise.

In the event of your death with defacto custody, your will and last testament will have no effect on the guardianship of your child. The other parent could more or less step in.

Even in a situation whereby you had Court ordered legal sole custody of your child and a guardian was named in your last will and testament; the other parent could easily bring forth expedited action of custody as your death would construe to be a material change of circumstance for your child. The courts would have to apply the best interest test as enumerated to determine the child's future care arrangements.

lv
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Old 03-25-2008, 10:53 PM
country girl country girl is offline
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thanks for clearing that up lv. it pretty much what i thought it would be.

country girl
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Old 03-26-2008, 12:59 PM
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I agree with LV.
I searched the case laws and even in the presence of a will, the courts ultimately award to the remaining parent. In the cases where both are alive the courts pick the best suited to the child's best interests. Once one no longer is alive, the other then becomes the primary.

This could be disputed by another family member, but I doubt a court would not give custody to the other parent, unless it could be shown that without a doubt this parent was unfit to parent.
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Old 03-26-2008, 03:25 PM
robrjm robrjm is offline
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Default child support

Have you asked for child support. If not ask today. The courts do not like to award child support prior to the date of the first request. You may have lost the child support for last four months. Ask for it today and the ex will start paying or owing.
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