Q: My daughters dad has domestic absue against me. He is now stating if I die he is awarded sole custody.
I had a restraining order against him for a year. Did not renew as we needed to communicate. He also has an attempt of animal abuse charge, because he killed my dog. I have a major surgery scheduled in a few weeks, I wrote my will to state she is better fit to be with my brother and sister in law. He is stating he will be awarded sole custody if I die. Is this true?
A: General speaking the biological parent has a superior right to parent their children over other people, however the court can remove the child from the biological parent's custody if it is necessary to protect the child. Unfortunately, no one here on an internet website can give you the type of counseling session that you need to figure this out and take preventive action. You absolutely need to make an appointment with a family law attorney, preferably one that also does estate planning, otherwise you also need to talk to an attorney who does estate planning.
While it will be necessary to go to court and challenge the biological father's rights to have custody if you die, there are steps you can take to mitigate this. First, you might want to set up some type of trust so that any assets or investments you have go to a trust managed by your brother. If you have life insurance you might want to make your brother the principle beneficiary and tell him to use the money for legal fees he will incur protecting your children.
You brother may need to file with the court to be appointed the legal guardian of your children or if he has the type of relationship specified in ORS 109.119 he could apply for custody as a psychological parent. But essentially your ex as the biological father would be first in line to take custody unless a court intervenes.
You didn't say how old your daughter is. As a practical matter, if she is a teenager and doesn't want to live with her dad and say, runs away from home, the police will probably not force her to go live with him. Your brother will have trouble however intervening because that could make him liable for custodial interference. But between your daugther's resistance and filing in the court for judicial assistance, it would work out that she ends up with your brother. The key here is to make sure that your brother has the financial resources to hire a good lawyer.
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