Legal Question in Family Law in California
Ex-spouse exclude in will my choice for custody?
My ex-spouse does not want my sister to have custody of our children if she dies first and then I die, as I want to stipulate in my will. She has told me that she will include my sisters name in her will as someone she will NOT allow my kids to go to. Of course, she will be dead. If only one of us dies, the other parent gets the kids. Can she exclude my sister by putting her in her will as someone that she does not want? Also, in the unusual event that we both died on the same day, who would get custody of the kids? My choice or hers? She is a bit unstable and an only child. I want someone as closely related as possible to raise our kids and my sister has one young child of her own. Thanks for the help.
1 Answer from Attorneys
Re: Ex-spouse choice for custody?
No, your ex-spouse cannot exclude a choice for custody. If both
parents are dead, the court will choose the guardian. A parent's nomination
of a guardian is given some weight, but the final determination is based
upon the best interests of the child. Thus, if both of you die
at about the same time, the court would have to make a determination among the
people willing to take custody based upon what is best for the child. Important
factors would be the existing relationship of the person to the child, the person's
ability to care for the child and any special needs of the child, etc.
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