Legal Question in Family Law in Washington
Our situation is complicated- when I met my husband he was going through a divorce and had a 3 year-old daughter, after the divorce his ex-wife moved away re-enlisting in the Army. I picked up when she left very quickly and have ALWAYS been her Mommy ever since- she is almost 12 years old now. He and I were married w/in a year or so and now have 2 little boys as well. His ex-wife has paid child-support consistently and has always been allowed visitation per the divorce decree. She speaks to our daughter a couple of times a month and sees her a couple times a year at best. Lately, this has gotten less and less... slowly but surely, she hasn't seen her in a year and hasn't contacted her at all for 5 months. She is stationed in TX, is re-married and has no other children. What my question is ..is this: What would happen is something were to happen to her dad, my husband? I technically have no legal ties to her what so ever but the thought of her being taken by her absentee mother breaks my heart. I'm pretty sure she would never even try such a thing if something were to happen but it scares me that legally she would have every right to. We would be fine w/out her $608 a month if it meant she would give up her parental rights (this is something our daughter has wanted and would express to her if necessary). We would still allow her to see her- if and when her priorities change if our daughter wants to see her and have a relationship w/ her. What is it legally that we would have to do to start this process...if anything? A very frightening conundrum! Please advise asap.
1 Answer from Attorneys
There are 2 options: (1) adoption, and (2) wait.
She may agree to allow you to adopt, which would mean she would have no support obligation. This occurs with fathers fairly regularly but less often with mothers.
The other (and probably better) option is to wait. If anything were to happen to your husband, you could file a non-parent custody petition. I successfully handled one such case several years ago brought by the widowed stepfather. The standard is that (a) either the other parent is unfit, OR (b) placement with an otherwise fit parent would have a detrimental effect upon the development of the child. You would most likely go with the second prong, and drug use or other problems in the mother would assist in proving both prongs.
It appears from your email that the divorce was in WA. If so you don't have jurisdiction issues. In my case, the decree was from another state so we had to face a jurisdictional issue up front; and the court determined this was the home state of the child for purposes of my client bringing the non-parent custody petition.
Finally, your husband should nominate you in his will as guardian of the child, along with a separate affidavit to be submitted to the probate court expressing why he feels you would be the better custodian. The nomination would not be effective if the mother were still living because the law only allows the surviving parent to nominate a guardian by will. However, his affidavit would let the probate court know of the issue (though you would have already filed for custody for this time).
You would most likely need an attorney to handle these matters correctly.
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