A Question of Law: What happens with custody when parents aren't married?

A question came up that many may wonder about. When families are brought together in new ways after divorce or death, who will have survivor custody if something happens? Caring for children is easier at the beginning, with the new partners sharing in the role of care giver. But the new picture of what makes up a family can alter how custody is perceived. With step-children in the mix, the picture may cloudy.

For instance, a man lives with a divorced woman and they don't get married. They have one baby together, and joining their family is two other children from her previous marriage.

What happens to the step-children if something happens to the divorced woman? Who has custody? What if the man and the ex-husband of the deceased have a verbal agreement on how it should work?

  • Can an enforceable agreement be drafted that would allow this to happen?
  • What if the ex-husband changed his mind about the preset agreement after something happened to the woman?
  • Would the courts respect any kind of oral agreement?

Most likely, this is what would happen:

1. An enforceable agreement can be drafted as a testamentary document. Each of the parents (man and divorced woman) can do a Will that specifically identifies who they designate to be legal guardians of the children should they die. This is enforceable against the entire world, except sometimes a surviving parent. If the surviving parent is legally fit and wants custody of the children, the surviving parent will likely get it;

2. The courts would recognize and enforce an oral agreement if no adverse party comes forward to object. If an adverse party comes forward to object, then the court must hear testimony, take evidence, apply the law, and decide the ultimate issue of who should get custody of the step-children. If one of the adverse parties is a natural parent, and the natural parent is legally fit, then the natural parent will most likely be made the recognized legal custodian of their own children. I've been through a few of these where a natural parent has had to battle other family members or "friends" of the family for legal custody of their own child, when the other parent has died and designated a legal guardian for the children in their Will. It can be expensive and very ugly.

Side note:

If the partners (man and divorced woman) decide to get married, and if the step-children's father (the ex-husband) would agree, it is possible to have the step-children's father voluntarily relinquish his parental rights to the step-children and have them adopted by the man, but they must be married in order for him to adopt them. If the man is the step-children's legal parent by adoption and anything happens to the divorced woman, the man is already their legal parent and nothing changes.

As legal matters relate to the man's own child he has with the divorced woman, he wants to strongly consider getting married to his child's mother, or having a legally binding paternity agreement, despite their belief that they will always be together and all will always be well. Until such time as a court rules otherwise, only the mother of a child born to unmarried parents is the legal guardian of the child with all the rights and responsibilities associated with that role. I am watching for legal precedents that apply in this situation. Unmarried parents not staying together wreaks havoc in the lives of children. Call Burnett Legal Group at (402) 810-8611 or contact us online to schedule a free consultation to discuss your family related case with one of our experienced attorneys.

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