I have a son, Alex, who is not Ben’s son. Alex’s father has pretty standard visitation (2 weekends/month, some holidays, time in the summer, etc.), most of which he doesn’t actually take advantage of, but I think that’s rather beside the point. Oh, and at one point he was deemed unfit and had restricted, supervised visits for nearly a year. I’m not sure that’s relevant but, just in case…
Anyway, Ben and I are expecting our first baby together (his first, my second) this fall.
Let’s say I die. Does Ben have any rights to visitation with Alex? What about Alex? Does he have any rights (he’s seven, but still) to a relationship with his little brother? This assuming totally juvenile levels of cooperation (read: none at all) on the part of Alex’s biological father (a reasonable assumption if you know the guy).
Is there anything I can do before I die to ensure that Alex gets to continue a relationship with Ben and his sibling(s) or is it out of my hands?
This is in MN, btw. And I’m probably not going to die so it really is hypothetical. I googled for step-parent rights but mostly got stuff like whether they can sign consent forms or school registration forms or whatever and a lot of sniping by biological mothers against the step-mothers of their children because “HOW DARE SHE DO MY JOB?!”
I know this is hypothetical, because you said so, but I’m just reminding everyone not to make personal legal decisions based on posts in a messageboard.
There are a couple Dopers who have family law backgrounds, so you might get some responses if they think it’s something they can address without giving inappropriately specific advice. But it’s enough of a specialized area that I wouldn’t trust anyone but a family law practitioner to have the answer.
IANAL but I suspect that it’s all going to depend on which judge they draw. I have a very good friend who actually won custody of her step kids after her husband died but the mother had been completely out of touch for several years and the kids were old enough that the court took their wishes into account (13&15 iirc).
If it’s something you care about give them the tools. Make your wishes known in the will, name a common guardian in the event that something happens to you together and make sure someone knows where the will is.
Another way to approach it could be to have your parents sue for visitation and have Ben and jr there when Alex visits.
Ben could sue for visitation rights, on behalf of the younger sibling, with Alex. Hopefully, Alex’s father would be cooperative to some sort of visitation, but if not, then would depend upon the judge he got.
You probably aren’t going to die, but then again on the way home from work tonight you might swerve to miss a badger in the road and then die in a horrible ball of flame. Or any number of things could happen to you.
Please, please, consult a lawyer and get your wishes in writing now. Setup wills and trusts, specify who you want to be the legal guardian of both kids. There ain’t many guarantees in life, and a court can always do something wacky, but I guarantee bad things if you don’t take the time to make your wishes express before something happens.
If money is an issue, and this sort of thing can run into the hundreds of dollars, look for an attorney who will work with you on payments.
Her guardianship wishes for Alex will not trump the parental rights of the Dad. They would only come into play if Alex’s dad was deceased before Silver Fire.
In fact worst case scenario for Silver Fire would be: she dies in a car accident and Alex’s custody goes to his Dad. The next night Alex’s dad dies in a car accident and Alex’s custody goes to whoever Dad designated as guardian. Someone unkown to Alex’s stepdad.
I’ll tell you how my position is. When I was married I had a stepdaughter and biological son. I raised my step-daughter since she was a baby, her ‘father’ has spent very very little time with her. Now that I’m divorced she’s legally not anything to do with me whatsoever. If the kids’ mom was more of a bitch she could say I will never see my step-daughter again and legally she’d be right.
Maybe so, but if there is any question as to what will happen, having an unequivocal statement that she wishes Ben to have some sort of custodial arrangement, if only to allow for the brothers to spend time together, then there will be no question as to what her wishes were. It may not help, but it won’t hurt. At any rate, I wouldn’t even presume to know any of the nuances of Minnesota family law and thus the need to see a lawyer to try and get something nailed down.
Typically, adoption by Silver Leaf’s husband would only be available if Alex’s dad were to legally relinquish his parental rights.
I have a very good friend, whom married a woman with a 4 year old daughter. The bio dad was not around much, but the spent few weeks in the summer with the daughter as they lived in a different city. After being married for about 6-7 years, they learned that the wife was having health problems, they discussed the neccesity of the my friend adopting the daughter and the bio-dad giving up his parental rights, as step dad would be in the best position to care and support the kid. The bio dad agreed and the adoption when through. A few years later the mom died and my friend retained full custody of his adopted daughter. She still sees her bio dad when she visits family. But to her my friend is her dad.
Not a lawyer in your jurisdiction but a note of warning.
Judges often use a “best interests of the child” test.
and
Family law usually allows infact requires judges to play a more active role in making determinations, general statements of law and precedent are rather less useful, anecdote; compleletly useless.
Adoption is the best way. Perhaps you can get your ex to sign the relinquishing parental right thing (that goes along with hubby adopting him) with the stipulation nothing will change (he can see the kid when he wants on weekends, etc)? That way you and your hubby have the legal upper hand, but the ex can still see the kid.
I doubt very much that he would do that. Recently (last weekend) he freaked out on me because Alex said something to (or maybe even just within earshot of) him about Ben being Alex’s dad. I got nasty texts about how just because he’s dumb enough to marry me doesn’t make him Alex’s father (which isn’t what was said anyway, but whatever) and that I’m encouraging Alex to shun his real father and how I’ve hit a new low and blahblahblah. None of which is true, btw, and I shudder to think what was said to Alex when this actually happened. I sent him a text the next day that said we should talk about what did happen after that but I haven’t heard from him since.
Anyway, he won’t sign over his rights and I’m reasonably certain he would not willingly agree to grant Ben or any of Alex’s siblings any kind of visitation whatsoever if he doesn’t “have to”. So that’s why I asked, just to see if it’s even possible to compel a biological parent to share parenting time with a step-parent. With the new baby and stuff I’ve been thinking about it a lot lately.
Ben aside (though I do think their relationship is important, too), I would hope that maintaining a relationship with his siblings would be seen as in his (and their) best interest.