Tuesday, September 4, 2012
I was recently diagnosed with cancer. While the doctor is optimistic about my recovery and survival, it has made me reassess my plan in the event that I do not beat this. Of primary concern to me is providing for my children, ages 12 and 10.
My ex-wife and I divorced shortly after the younger child was born. She wanted to pursue her acting career in California and did not want the responsibilities of motherhood. I live here and have remarried to a wonderful woman who has helped me raise my children as if they were her own. My children call her Mom.
I had always assumed my current wife would continue to raise the children because she and I have been doing so together for many years. My ex-wife sends them birthday and Christmas presents and occasionally calls to share her stories of whatever. She is not a bad person, but her priorities are not appropriate for my daughters.
Can I write into my will that my daughters will be looked after by my current wife? She is completely supportive of this decision. I know my daughters would be devastated to lose the only mother they have really known right after losing their father.
Limelight Lisa’s Ex
First, planning for one’s mortality is never easy, and I commend you for the bravery and responsibility you are showing for doing this in advance. Many people don’t.
When deciding custody of children, the state attempts to determine what is in their “best interest.” The parents are presumed to know what is in their best interest. When the parents are in agreement and the children are safe, the state generally does not interfere. When the parents disagree, the state must decide which parent’s version of “best interest” is better.
You are always able to nominate a guardian for your children in the event you die before they reach 18, the age of majority. However, this is only a nomination; the party you request will need to be approved. The process for seeking approval is generally through filing a petition for non-parental custody.
Custody of a child to a non-parent in a proceeding against a parent may be awarded only if the parent is unfit or if parental placement would result in actual detriment to the child. This means that if your ex-wife decides to seek custody of your children, your current wife will have to argue that placing your children with your ex-wife is not suitable.
There is a high burden of proof to meet to establish this. The upheaval you mentioned, the inappropriate priorities and the limited contact all support the claim. I don’t know whether they would be enough to overcome the fundamental right your ex-wife has to parent her children.
This is something you would want to discuss further with an attorney familiar with custody law.
I wish you the best and pray for a speedy recovery.
John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only. Any information given is to illustrate basic legal conceptsw. Have a question? Ask John at email@example.com.