My client is divorced and has shared custody of his 9 year old son. He plans to marry his fiance and wants to name his future wife as guardian. If he dies before the child is 18, will his new wife share custody with his ex wife or will the ex wife get full custody?
Any ideas?
Neil Simms
Trusted Wills
If the ex-wife has parental responsibility (PR) for the child then on your client’s death the appointment of his wife as guardian will only take effect if the ex-wife has also died or no longer has PR. That 's my understanding of the Childrens Act 1989.
Samir Hussain
Gregsons
I believe that a guardian clause in a Will does not take primacy or match a surviving person with Parental Responsibility - the ex wife in this case.
I always thought a Guardian clause was more relevant when it was the last / only living person with Parental Responsibility that died.
Happy to hear the views of others on the forum.
Michael Henry
Debenhams Ottaway
I agree with Samir and Michael. My understanding is that there is a presumption of Parental Responsibility and the appointment of Guardians (which, in itself, is not legally binding because it is subject to confirmation by the Court) normally only takes effect if there is no surviving parent.
The only thing Neil’s client could do is to state, in the Will, that “for reasons which I have set out in a separate letter, I wish the appointment to take effect even if the child’s mother survives me”. Those reasons would have to be compelling and effectively prove that the mother is completely unfit to look after the child due to, for example, drink/drug addiction or severe mental health problems which make her unfit to look after a child etc. However, I suspect it is very unlikely the appointment would be confirmed by the Court, especially as the parents currently have shared custody, suggesting that the mother is not regarded as an unfit person.
I think it is also rather misleading to think of it as “Biological vs Adoptive Mum”, as the client’s new wife will not be able to adopt the son while the mother is still alive.
David Price
David Price & Co.
Many thanks for your excellent response. When I named the topic I was thinking along the lines of adopted children who seek out biological parents. I guess both can exist when the child has been given up for adoption rather than my client’s situation where the mum has fought for shared custody. Incidentally, my client was originally granted full custody but mum was later awarded joint custody.
Neil Simms
Trusted Wills