Legal Question in Wills and Trusts in Massachusetts

Re: Naming a Guardian

You can continue to control the care of your son until you die. However, if the father claims that you are unable to care for your son because of a medical condition, he may be able to obtain custody. Once you die, the father automatically gets custody.

Re: Naming a Guardian

The will only takes effect after you die, and has to be probated to take effect. If the will provides for a temporary appointment of the executor, and no one objects, or all of your heirs consent to its being valid and it is admitted to probate, it can happen fairly quickly. It will help if the person named as executor is aware of the situation.

If you become incompetent (mentally ill, comatose, vegetative state), your will will have no effect. You should execute a springing durable power of attorney (that takes effect if you become incompetent), in which you nominate a guardian for your children and authorize the attorney-in-fact to petition for guardianship and to oppose any petition by the father. It will help if you clearly state the reasons. The more time has expired from the date the court granted you sole physical and legal custody, the more likely a court will consider if the father's attitude has changed, especially if he has maintained some contact with the children. If he has had no contact with the children (and not forced by you), the more likely a family member who has had frequent contact with the children is to be appointed guardian.

Unfortunately, there is no guarantee. The only way to be sure the father cannot gain custody is to have the children adopted by someone else, whether a new husband or by a relative or even by a stranger.

Re: Naming a Guardian

You need to take action in Family Court to terminate your ex-husbands rights to custody permanently. You need an attorney who specializes in custody matters which I do not but would happily refer you to someone.

You can appoint a guardian and you should create a durable power fo attorney in case you are hospitalized and need someone to protect your child.

If you were divorced in MA, you have a simple matter of going back into family court.

If you were divorced somewhere else, it becomes more complicated.

Good Luck.