Who's your daddy?
April 26, 2006 6:43 AM   Subscribe

What happens to the kids if my husband's ex dies?

My husband has 2 children from a previous marriage. They separated 10 years ago when the ex started a new relationship. The boys are now young teens and live with their mom and her husband (the guy she left dh for). Dh has joint legal custody and a typical visitation arrangement. He tried to get custody when the divorce went through, but it's nearly impossible to do here in MA. Since then he has tried to be as involved as possible in their lives, despite the roadblocks she has thrown up.

Since the beginning, she has tried to alienate the boys from their dad, especially by insisting that they call their stepfather "daddy" even though that's what they call my husband. He's talked to them about it, telling them that it hurts his feelings and asking what their mom would think if they called me "Mommy." He encouraged them to find a nickname for the stepfather if they really wanted to call him something other than his name. (This is particularly galling because the guy has two kids from HIS first marriage that he gave up rights to so their stepfather could adopt them! Also, dude's an asshole)

This weekend, one of the boys had a special religious ceremony. At the ceremony she delivered a blessing and spoke repeatedly about how "Daddy and I are so proud of you" referencing the stepfather. Afterwards, my stepson invited people forward to light the candles on his cake. He called us "my father and stepmom's-first-name" and them "Mom and Dad." I could tell that other people were uncomfortable seeing my husband react to this. It was defintitly up a notch from her usual behavior.

Then it hit me: she is sick, and although I believe her prognosis is good, she is probably planning for the worst. She would hate to have the kids come live with us, so what better thing to do than publically acknowledge the stepfather as daddy, as a precaution should there be some court battle?

I looked through the custody arrangement and see no provisions regarding the death of a parent. Is there anything my husband should do to prepare just in case this does become an issue?

Jesus, this is long. I am trying to premptively answer any questions that might arise since this is anonymous.
posted by anonymous to Human Relations (14 answers total)
IANAL, but I believe that stepparents have very few rights in these situations. I have a friend with two step-children, and she effectively lost all right of contact with them when her husband fell off the wagon. He lost his custodial rights, and she had no custodial rights, so the kids were back with their birth-mom and her abusive boyfriend. (Luckily, husband got back on the wagon, his rights were restored, and things are now good.)

While the lack of stepparent rights was a bad thing in this case, it sounds like it would be a good thing in your case. I would just encourage you not to be as nasty about the situation as their mother was, and allow them to continue the relationship with their step-dad as they see fit.
posted by alms at 7:03 AM on April 26, 2006

There is no benefit to you in obsessing over another woman's behavior. You can't control it, all you can do is harm your own mental health.

Kids that are "in their young teens" and have spent ten years in the custody of their mother only are going to be heavily influenced by her attitudes toward their birth-father. They may have heard on a daily basis that he's a lowlife scum. There's nothing you can do about that either, except for the birth-father to do the best he can to be a good father in the limited times permitted to him. Probably the kids will hate him forever.

If the custodial parent dies, generally the non-custodial parent will be able to obtain custody. The step-parent (new "Daddy") may end up with visitation rights, if he wants them.
posted by jellicle at 7:11 AM on April 26, 2006

you cannot will (as in last will and testament) your children; children will not be removed from a natural parent (even a surviving parent who has not had full custody) absent a judicial finding. this is why custody agreements pretty much never say anything about what happens if a parent dies. you're simply not allowed to.[fn1]

it's more complicated than that, certainly, but essentially, when the parent with physical custody dies, the surviving parent assumes sole custody. step-parents are sometimes provided (by state law) rights to petition for visitation following a divorce or death, but a surviving natural parent is presumed fit and presumed the proper person to care for his minor children unless and until someone petitions the court to terminate his rights. in that case, the court would determine who best to have custody. when you are dealing with older teens it gets even more complicated because the court pays close attention to the teenager's expressed preference and if the teen is old enough, he can petition for emancipation and choose to live where he wants. [fn2]

there isn't much your husband can do to pre-empt any ugliness that will erupt should his ex-wife die. if she'll agree, you can draft some sort of document detailing how the physical transfer of the boys will take place should she die, but that's about it. even an agreed visitation schedule with the step-father would not be legally enforceable unless it was first approved by the appropriate family court judge.

caveat: IAAL but i do not practice in this area of law because a) it's depressing; b) the clients often behave worse than criminal clents; c) no-one ever comes out ahead. however, i have had to litigate these kinds of issues in conjunction with my (former) juvenile practice and in my personal life; therefore this is not legal advice, just some practical observations about how family law works. you can shoot me an email at lizzy.esq at gmail dot com if you want.

[fn1] even when married parents express a preference for who should raise the children if both parents should die, say, in a plane crash, are not binding upon the court that determines the best interests of the orphans. however, individual judges do give weight to those wishes.

[fn2] a friend of mine had a much younger brother who did essentially this to avoid a visitation order with a mother that he essentially never knew. that was in michigan.
posted by crush-onastick at 7:17 AM on April 26, 2006

If the mother dies, custody will be granted to your husband. The most that the stepfather could possibly win if he decided to pursue the matter legally would be visitation rights.

I had an awful stepfather, and there was absolutely no way I would have ever let ANYONE convince me to call him dad or daddy. I never even called him by his name, it was always "hey" when speaking directly to him, 'that man my mother married" when speaking about him. The fact that these children seem fond of this man might mean that he's not as much of an asshole as you think, and if their mother does die, it might not be the best idea to compound that loss by cutting him out of their lives completely. You and your husband (and the mother and her husband) are adults. Hurt feelings among adults over who gets to be called daddy are ultimately far less important than the happiness and comfort of the children. Contact a family law attorney if you want to know for certain about the custody thing, and then focus on making sure that the children aren't caught up in the jealousy and competition between the father and stepfather. You can't control the mother and stepfather's behavior, but you can make sure that you and your husband stay above it and indicate to the children that it's OK for them to love their stepfather, and whether they call him dad or john or jellyfish, it's their decision and won't affect how their father or you feel about them.
posted by cilantro at 7:18 AM on April 26, 2006

I'm going to call bullshit on jellicle's assertation that "Probably the kids will hate him forever."

The best thing for your husband and you to do is to provide a stable, loving home for the boys when they are with you. In the long run, the venom spat at your husband by his ex will be obviously contrary to the experiences of his boys. In turn, they will view their mother as trying to drive a wedge between them and their father.

Your husband has a unique opportunity now that the boys are becoming men to give them a good role model fro being a man. Tell him the worst thing he can do at this point is to act like his ex in front of the boys. Don't be petty about their mother's behavior and don't make rude or mean remarks about their step-father. I know it's hard to do (I'm in a similar situation myself) but it is best for the boys.

As for the step-parent's rights; he only has rights if he adopts the boys, which I don't believe he can do unless your husband gives them up. If the mother dies then the boys would be in the care of thier father.
posted by DragonBoy at 7:23 AM on April 26, 2006

Then it hit me: she is sick, and although I believe her prognosis is good, she is probably planning for the worst. She would hate to have the kids come live with us, so what better thing to do than publically acknowledge the stepfather as daddy, as a precaution should there be some court battle?

I can't figure out why you came to this conclusion- you probably left something else out, like that she's looking gaunt or fragile.
posted by ThePinkSuperhero at 7:33 AM on April 26, 2006 [1 favorite]

Cilantro is really on to something here -- I know that even though my step-mom is really great, and I've known her since I was 6, and she's been very integral in raising me, there's no way on god's green earth that I'd ever consider even the thought of calling her mom or mommy or mother or anything even remotely related to mom. Whether or not their mother is pressuring them, the fact that they are willing to go along with it means either A) they're sheep, which isn't likely seeing as how they're young teens who, y'know, sorta do whatever the hell they want to, or B) they kinda like the guy and they want to please their mom. To your question? There's no conceivable way that a court would ever grant the step-father custody. Biology is of paramount concern for judges, and while frequently that screws up families (oh, look, here's your drunk mom, back from a bender, let's take you away from the nice people who've been taking care of you and loving you), here it'll be your saving grace. Let's hope she doesn't kick the bucket, though -- I don't know many people who did well after losing a parent during their teen years.
posted by incessant at 7:47 AM on April 26, 2006

ThePinkSuperhero - I think she meant she already knew that: "then it hit me - she's sick (she was been diagnosed with breast cancer last month), and although I believe her prognosis is good...."
posted by tristeza at 8:00 AM on April 26, 2006

PinkSuperhero, I believe Anonymous already knew that the birth mother was sick and that it's potentially life threatening. "Then it hit me" means it's just occured to her that this illness may be playing a part in the mother's behavior.

Although I think the original question has already been answered, I'll throw in my two cents on the situation. My parents divorced when I was ten and like others have said, I never considered calling my stepfather "dad" even though he became like a second father to me. The kids here though were obviously very young (3 or 4?) when the step father joined the picture so I can understand why they may feel OK calling this guy who played a big part in raising them "Dad". I still think it was wrong for the Mom to push this though if the kids real father was still in the picture. However, I agree with Leon that the father shouldn't lay the guilt on the children. The "call him dad" issue should be with his ex-wife and I don't think it's fair for him to now try to change his children's relationship with their stepfather after ten years. He's still their birth father and I'm sure they realize that (and they still call him Dad as well).
posted by gfrobe at 8:01 AM on April 26, 2006

Ah ha, that makes a lot more sense.
posted by ThePinkSuperhero at 8:02 AM on April 26, 2006 [1 favorite]

Noncustodial parent will get priority over the formerly custodial stepparent - unless the noncustodial parent is judged unfit in some way. Stepparent may get visitation rights. As teenagers, they are old enough that their opinion of their stepparent will get some attention from the judge.

When the custodial parent dies, call your attorney immediately in order to start the custody proceedings. In fact, he should call the attorney now, at least to discuss the possibilities.

Also, don't be jerks to the kids, the ex, or the step. The court will be revisiting the custody arrangements, so anything you do will be brought up by the stepfather. Although it might not help him get custody, it could increase his visitation time.
posted by MrZero at 9:16 AM on April 26, 2006

Hey everybody, Anonymous wrote me a letter, and asked that I post it for clarification.

I'm the anonymous who posted about the stepfamily follies. Not that I'm embarrased, but I didn't want to take the chance that she or the kids would ever find the thread. So yeah, I did leave something out about her illness. She has breast cancer and is in chemo right now. The way I wrote it makes it sound like I jumped to a weird conclusion, when really she told us herself.

Also, I don't know if you would be willing to post something on my behalf, but I wanted to address the issue of my husband being an asshole. He isn't. He has shown more restraint in the situation than I ever could. When he discussed the "daddy" thing with the boys he simply asked them how they thought he might feel to hear them call the step-dad by the same name they call him, and compared it to how they call their grandmothers "Nana" and "Grammy." They love them both but have different names out of respect. I think it was entirely appropriate to bring up how we don't ask them to call me "Mommy" because I am NOT their mom and we know it would hurt their mom's feelings if she heard them calling me by the same name. They actually came up with a name for me recently (their idea) that combines "Mom" and my first name. The boys don't particularly like the step-dad, especially because he has ordered them to never let me or their dad inside their house when we pick them up for the weekend, which they percieve as unfair.

posted by ThePinkSuperhero at 11:44 AM on April 26, 2006 [1 favorite]

Your husband would definitely benefit from meeting with his attorney. When he explains the situation, the attorney can give him advice about what he should expect. If your husband needs to actually file something, it's possible that his divorce attorney might refer him to another attorney; that happens and he shouldn't take it personally.

The key is this: in MA, you usually keep the divorce docket # and Judge from the original divorce for all subsequent stuff, like modifications. An attorney can tell you what the law covers versus what would be up to that judge.

It sounds to me like this is DEfinitely worth the attorney's consultation fee, if only for your husband and your own piece of mind.
posted by Sprout the Vulgarian at 12:03 PM on April 26, 2006

Just a story to ease some emotional worries you allude to in your question. I don't know the legal issues. What I want to talk about is the way this "daddy" thing makes you and your husband feel, and the effects the emotional manipulation you husband's ex is doing might or might not have on the kids.

1) Naming from the kid's perspective. My family is extremely complicated, lots of divorce, remarriage, kids without marriage, death of first spouse, all that (and in a relatively small family!). Starting around age 17 when naming issues for adults came up, here's the attitude I had: If someone wants me to call them Uncle, Aunt, Mom, Dad, whatever, I accomodate. I'm a kid, I'll do what I'm asked. I don't particularly care if one adult figure is called one thing or another - I'll do what is expedient for me. If someone is going to feel better if I call them a particular thing, well that's what I'll do, to be nice. If people were to have gotten into a big argument about who is called what, I would have wondered what the hell the big deal was about and chalked it up to parental infighting. I would also have resented or thought less of whoever made the biggest stink, and thought better of those with a live-and-let live attitude.

2) Emotional manipulation / trying to turn kids against you. My experience here was that my mom told me my *entire* life that essentially everyone other than her in the family was a shade of evil / manipulative / Bad. I had little or no contact with these people. Around 17 I had lots of contact with most of the family, and at 19 I met my dad for the first time. I don't retain any of my mom's prattling about how Bad everyone else was - my opinions are my own, despite her attempts at manipulation, and I saw through all her bull from a pretty early age.

OK. So, the kids involved here might be very different, or they might not. But that's one perspective where everything turned out just fine. My first reaction to your issues with her new guy being called "Dad" was that you should NOT treat it as a deal at all, much less a big deal. Your husband's kids will appreciate this greatly. Maybe they have two moms and two dads now, in a way, and this provides them with more people to learn from in life. Maybe these people are just awful and you don't want the kids to learn a single thing from them. Either way, it's out of your hands and you need to know that by setting a good example and giving guidance in all aspects of their life, they'll turn out just fine. If you're compassionate, helpful, etc., they'll also turn out to really appreciate it and be loving back at you.

I guess that's enough from my corner, especially since I'm not addressing your legal question. Just wanted to throw a little "don't freak out about the emotional side of this" message into the green. The kids will appreciate your tolerance and ability to let it slide, and they will probably respect you the more for it. That, and you'd be setting a good example.
posted by lorrer at 7:07 PM on April 26, 2006

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