Legal Question in Family Law in New York

Re: guardianship

No. But the divorce papers are not necessarilly determanitive either. A basic misconception about the custody of children is that they can be willed like property. Children are not property and if a parent dies, the other parent will have custody unless the parent is unfit. If that is the case, anyone who is an interested party including your named custodian in the will and any other family member(grandparent, uncle, aunt or sibling) can petition the court for custody. Custody will be awarded based upon the best interest of the child standard.

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Re: guardianship

Mr. Loeb's answer is incdomplete. He is a bright and knowledgable man and I have learned much from his answers. But in this case, his answer is incomplete.

The divorce papers are a 'court order'. The decision of where your children will go if you pre-decease your ex has already been made and only that court can change it.

Your will has no effect.

What you can do is go back to the court and ask that your ex's custody have a 'condition precedent'. He must have a reasonable place to live and a job or the children go to your parents.

If you can get him to agree (very possible - you might be surprised on this one), then it can be arranged.

In the absence of his agreement, the court might be very sympathetic.

The important thing is to present it as a condition precedent to his custody, not a bar to his custody.

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