My husband & I have separate wills & we are a blended family. Can I be listed as the guardian of his children?

Our four oldest children are his from a previous marriage and they have lived with us for 5 years and their mother lives 3 states away. Would it hold up in court for me to be listed as guardian of the kids in his will. I know, I know, I need to speak to a lawyer, but I am trying to gage what our options are. I appreciate your advise.
We live in Texas.

Related Blogs

    This entry was posted in family solicitor and tagged , , . Bookmark the permalink.

    12 Responses to My husband & I have separate wills & we are a blended family. Can I be listed as the guardian of his children?

    1. elysialaw says:

      Long story short..he can put it in his will that it is his express desire that you care for the children, however, Wills and Child Custody are governed by entirely different statutes and have no force and effect upon each other.

      Putting it in his will would state his desire but would not be legally binding, although in a custody dispute (between you and the mother on his death) the will may be taken into consideration by the judge making the decision.

      If you want a fully enforecable document you would have to apply to adopt the children, in which case the mother would have to consent and sign away her rights, or you would have to prove to a court that she is unfit and her custodial rights would be removed.

    2. bonstermonster20 says:

      I would say that the only way you could do that is if something happened to her, and he would have to put that in his will.

    3. khrome_wind says:

      You would need to sue for custody and you would probably lose, unless the mother has been declared unfit.

    4. LSU_Tiger23 says:

      If she has given up her rights to the children, as in you are able to adopt them legally, then yes, you can be put as their guardian in his will. If she still has partial legal custody of the children, then she either has to give up her rights to them or be declared an unfit mother by the courts.

    5. rebel g says:

      She would have to agree to that. She is their mother and the next in line to get them should something happen to him. Some states will let older children determine where they want to stay, so perhaps if they are older when he passes, they can choose to stay with you.

    6. WhatAmI? says:

      It all depends on the divorce custody arrangements. If the kids have bonded with you, and you have a close relationship the courts would consider you as a guardian.

      If something were to happen to your husband and the kids are over the age of eight or so, then family court judges take into consideration the WISHES OF THE CHILD.

    7. blokblok1960 says:

      As far as I know, unless "you" officially adopt the children, you will have no legal right to the children if something happens to your husband. I seriously doubt the biological mother would allow you to adopt. It could also depend on the age of the children, how long they have resided with you and your husband, how much custody/visitation the bio mother has. Anyway, like you said, see a lawyer. Good luck.

    8. my_email_62 says:

      If his first wife is still alive, she has custodial rights if he dies in most states, and I believe Texas is one of those states. You need to speak to a lawyer, but if she voluntarily gives up her parental rights, or gets them stripped from her by the courts, then you’d be free to take guardianship. Good luck

    9. CHARITY G says:

      I have a friend in Florida who had similar issues. His son lived with his mother who remarried . . . as a result his son spent more time with his "step father." My friend saw his son every Saturday and Thursday and on holidays and summer breaks but was clearly not the primary paternal parent. He made arrangements with his ex-wife that in the event of her death custody would remain the same . . . that is the step father and biological father agreed to continue the same arrangement for custody. P.S. these were not "warring" exes. Both parties were rational and clearly wanted what was best for their child.

    10. mms4resprnts says:

      As many have already stated, the birth mother has the legal right to the children in the event something happens to the father. Unless you are the adopted mother legally, or the mother has been deemed unfit and given up her rights of parenthood. You can be listed as legal guardian until such time as the mother comes to take the children into her home, but that would only be for a little while after your husband was to pass. He can also list you as their legal guardian in the event she refuses to come get them, but that would also require you to legally adopt them and take her to court for custody.
      If you want permanent custody of them and the mother doesnt have anything to do with them, file for adoption before the off chance of anything happening to your husband.This would eliminate the option of you loosing them.
      It doesnt matter how far away she lives, as long as she visits with them regularly and is a part of their lives, she is their mother and has the rights of a mother in the event something happens to their father.
      See a Lawyer and good luck.

    11. carmel says:

      Since the mother is living, you would have to talk to the father as well, and see how both people feel about this delicate situation. Are the kids close to you?, and would they like for this to happen, with you having legal guardianship over them. The mother and the father along with the courts, would have to determine, whether you would be fit, if the mother is unable to take the role of parenting, if something was to happen to the father.

    12. EC Expert says:

      She gets first chance at the kids unless her rights have been terminated . She can decide whether they stay with you or go with her. You can mount a custody fight but it would be messy.

    Leave a Reply