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Divorce: If You Die, Where Will Your Kids Live?

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Published: 29Mar2010
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Our local judge makes an interesting point in custody cases. He also makes the windows rattle and the attorneys run for cover, but after the glass is cleaned up and we stop shaking in our boots, he makes this valid point.

"If you die, where do you think your child will live?"

This is a sobering question when parents hate each other's guts. "My boyfriend" or "their grandmother" is not the right answer. The fact is, that unless the other parent is an ax murderer or a drug dealer, his or her home is where the kids will end up.

There is no custody battle when one of a child's parents dies or otherwise becomes unable to care for the child. Relatives may want to take over. Friends may even be better suited to do the job. However, the fact is that unless the other parent is totally unable to do it, the child will go to him / her without any action from the court, even if a previous custody battle went in the deceased parent's favor.

Sometimes, the custodial parent tries to keep the child from the other parent by naming a guardian in his / her will. However, the guardian still has to file a petition for guardianship. He / she has to have solid proof that the surviving parent is abusive, or otherwise unfit to care for the child. It is not a question of where the child will be better off, or even more comfortable. It is strictly a question of capacity. Can the surviving parent provide food and clothing and shelter to the child? Is he / she going to abuse or neglect the child? Beyond those inquiries, the court has no authority in the case, no matter if the deceased parent's family think the other parent is the biggest jerk that ever walked the earth.

Divorced people are well advised to try to encourage their former spouse to have a good relationship with their children. The child should spend as much time in the other parent's home as possible. He / she should be encouraged to have friendly dealings with step parents as well as other children with whom he / she could end up sharing their life.

Opportunities to build a positive relationship with the ex's family should be used whenever possible. Custodial parents should make a point of coordinating the child's schedule so that the ex will have access on his / her special occasions. The child should be included in Family events such as reunions, weddings and funerals, no matter whose side of the family is involved. The birthdays of step-parents and siblings may not seem important, but the child should be given the opportunity to bond and share memories with the people in the other parent's home.

Adult bitterness during a divorce is understandable. Behavior on both sides can be vexing and annoying, and it can be very hard to deal with the non-custodial parent for any reason, let alone something so important as the care of your child. It may feel like the people with whom the ex chooses to surround him / herself should not be relevant to your child's well being and happiness. If you survive to a ripe old age, maybe they won't be necessary.

However, you should base your attitudes on what is good for the child. Even if you do live until you are 100, your child has only this time to develop his attitudes and values. The more people who know and love him, the more security he can take with him into adulthood. If you meet the grim reaper before your kids are grown, fitting into the other parent's life may be your child's key to recovery and living a normal life after you're gone Either way, unless their are circumstances in your ex's life that could cause your child real danger, your child will be better off if she can adjust to the worst situation, even if it never comes about.

Going through a divorce can be scary. Even your attorney can't take the time to answer all of your questions and concerns. http://www.couple-or-not.com is an easy to use resource for all your divorce questions. If your answer isn't there, write to Lucille Uttermohlen at lucille@couple-or-not.com to get your answers.

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