I have a 10 year old son who has autism. I have 100% both physical & legal custody. His dad sees him 2 Saturday's a month and has never been to one dr. appt. or IEP meeting. He is not involved in any way other than to see him twice a month. I have had a boyfriend for the last 5 years that is thoroughly involved, as well as his family and treats him as part of their family. I am very worried about, if I should die or lose the capacity to make decisions, what will happen to my son. I want to have it in my will that my boyfriend be his legal guardian, while his dad will still remain his dad and visitation would not change. How would I go about doing this?
2 Answers from Attorneys
You should congratulate yourself for being pro-active about this situation. I recommend that you consult with a family law or probate attorney about creating a will that includes provisions for having your boyfriend appointed as your son's guardian in the event of your death or incapacity. I also however feel that you need to carefully consult with your son's father about this action and possibly take the matter to mediation so that your wishes and your son's best interest are taken into consideration. There are a lot of different sets of people and feelings to be negotiated, however doing this work now, and keeping things updated in the event of any significant changes (i.e. you and your friend break up) should allow you to accomplish your goals of having your son supported in the manner that is both in his best interest and consistent with the pattern of caring that has been developed. Good luck with this.
While I agree with Ms. Macklin's sentiments and non-legal recommendations, I am afraid you cannot legally do what you want to do. No will or other estate planning document can do anything more than state a preference for what happens to your child if you die while they are still a minor. You cannot make any legally binding appointment of a guardian or any other enforceable provisions for the child's custody and care. You can create a trust and set up financial arrangments that might give incentives or disincentives to your ex regarding cooperation in appointing a guardian, but ultimately unless he is found to be a legally unfit parent, he will get custody if you die unless he chooses to allow someone else to become the child's guardian.