Q: If I have sole legal and physical custody of my child, dad has visitation, and I die, will he be awarded custody?
My daughter is 14, and visitation with her father is out of state, whenever he and I agree to. Since I have sole legal and physical custody am I able to designate in a will where she will live if something happens to me, or will sole custody automatically be awarded to her father?
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A: The custody order only divides up parental rights between the two of you. If either parent dies, that division is no longer relevant. The surviving parent would have priority over any other person unless a court determines otherwise. That determination would have to be done based on the circumstances at the time of the other parent's death. You could designate a guardian to take responsibility if both parents die. However, if you die first, you'd have to arrange for someone to file a third-party custody complaint. A relative or someone who knows the child very well would be best. That will be an uphill battle, as the third party would have to prove that it would be harmful for your child to live with the other parent. If you can provide that person with all the information you have about the other parent's unfitness, it will give them a better chance. It wouldn't hurt to designate some money in your will to fund the third parties' legal fees, as well.
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