Legal Question in Wills and Trusts in Massachusetts

Guardianship

I am a single mother. I have sole legal and physical custody of my 2 year old daughter. Her biological father was absent throughout my pregnancy until 7/06 when she was nine months of age and we went to court with inconsistent visits for several months and he has been absent since 10/06 until now. He does pay support, but we have not seen or spoken to him since. My boyfriend is the only daddy she has known. We are going to marry. He would like to adopt her, but we do not want to release her father from his financial responsibilities even though it is obvious he has no intention on visiting or having a relationship with her and at this point it would be confusing for her especially if he was to be inconsistent. We have discussed changing her last name as a way to tie our family together even if adoption wasn't possible. My concern now is I have a small family and my mother is terminally ill. I only have my sister and father and if something were to happen to me, I want to insure that my boyfriend is able to continue to raise my daughter and that her biological father is not able to have a right that he has not wanted or deserves. Is a will enough to insure this choice of guardianship is binding or is adoption the only way?


Asked on 2/15/08, 1:31 pm

3 Answers from Attorneys

Re: Guardianship

A will is not enough to change parental rights and responsibilities. Adoption would resolve the issue, but would simultaneously relieve the biological father of any support obligation since there would be a new, court ordered, father.

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Answered on 2/15/08, 1:40 pm
Alexandra Golden Golden Law Center

Re: Guardianship

Unfortunately, the only safe option you have to be sure your boyfriend can have custody in the vent of your death is to terminate the biological father's parental rights so that the adoption can go forward.

You can, of course, nominate a guardian in your will. While a court will generally honor that nomination, it might not if the other biological parent decides to challenge the appointment and is able to convince the judge that the guardianship is not in the best interest of the child.

I suggest that you consult a family law attorney to more carefully review the law and your options.

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Answered on 2/15/08, 1:44 pm
Joseph Murray Joseph M. Murray, Esq.

Re: Guardianship

Retain an attorney to proceed with adoption as the biological father could challenge any attempt to appoint anyone other than him as guardian of his child in the event of your death or incapacity.

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Answered on 2/15/08, 2:37 pm


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