Legal Question in Family Law in California

My Kids mother died Sunday. It has been a long 8 month battle with cancer. We have been divorced around 12 years now. I see the kids weekly and have always done so. We had Joint legal and she had physical custody. I live about 4o miles from their home. I would like them to finish out the school year where they are. My son is a Freshman and my daughter will graduate in under 3 months. After that she will be on the way to college and I would have my son move in with me and finish his last three years of high school here. They would continue to see their mom's side of the family. Their aunt insists she would move into her sister's (My ex) house let them finish the year there, after which she feels it was their mom's wish for my son to live with her.
1. Does the Custody agreement end with the death of the other parent?
2. Can custody be transfered to a non-parent as she implies were her sister's wishes?
3. What is the best way to document the three month term so it is not implied as a long term arrangement?
4. Is there any legal standing for non parents to take custody?

Asked on 3/29/10, 8:57 pm

2 Answers from Attorneys

Colin Greene Russakow, Greene & Tan, LLP

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Yes, the custody agreement ends at death. They are your kids, you now have all rights. The aunt at this time has no rights regardless of any documents, such as a nomination of guardianship, your ex may have signed. The aunt would have to file a petition for guardianship and essentially have prove that you are an unfit parent.

If you think it is best for the aunt to move in so the kids can finish the school year and then have them come to you, I think it would be a good idea to write up a simple agreement that you both sign that says that. Just a few sentences. It is not that such an agreement is absolutely determinative in a court battle, but it may keep the aunt in line in avoiding a future dispute and at least there won't be any dispute in court about what your intent was in not taking immediate custody.

Answered on 4/04/10, 10:03 am

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