Legal Question in Family Law in New York

Sole custody Parent is Dying and willed custody to someone else

My mother's ex-husband has sole custody of my younger brother and sister 10 and 12 yrs old. He's recently been diagnosed with throat cancer. In his will he has named one of his sisters and her husband to be legal guardians. Is this legal in NY State? As long as my mother can prove that she is capable of caring for her kids, shouldn't she be given custody when their father passes away?

My ex-stepfather's sister and husband live in Florida and everyone else lives in NY State. They have only seen my brother and sister a few times in their lives and they have no children of their own.


Asked on 5/02/05, 10:20 am

1 Answer from Attorneys
Phroska L. McAlister PHROSKA LEAKE McALISTER

Re: Sole custody Parent is Dying and willed custody to someone else

Children are not property. They cannot be "willed" away.

Also, your mother can file for custody, based upon her Ex Husband not being able to directly care for the children during his illness or recovery? period. Unless your mother was "forever" disqualified or barred from being the custodial parent of your brothers, as their natural parent, she always has standing and the RIGHT to Petition for custody.

Additionally, You as sister, if an adult and self supporting (even of the half blood?), have a superior right and eligibility to custody, of your siblings, over that the father's sibliings.

Good luck,

Phroska L. McAlister,ESQ

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Answered on 5/02/05, 11:17 am


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