CanI give my custody rights of my son from a previous marriage to my current husband should something happen to me?

I have been with my current husband for 7 years; my son is 9; his father lives in OH and currently gets bi-weekly visits. I have health issues and might have an incurable disease (test results pending). My son and husband are very close and I want to make sure that they stay in each other’s lives.  Accordingly, can I give my rights to my husband since my ex won’t give up his? Ex is an alcoholic and can be dangerous. I don’t want my son to be stuck with him.

Asked on March 19, 2011 under Family Law, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No, unfortunately, parental rights are not transferrable in that way: while a person can, under some circumstances give up his or her parental rights, that person cannot "give" them to someone else. And since your ex-husband still has his parental rights, your current husband cannot adopt your son.

Sometimes, custody will be awarded to someone without parental rights, IF that is clearly in the best interests of the child, but that is rare, requires a very clearly showing of likely harm to the child (not just that the child would be better off with someone else) and fights the legal system's natural inclination to keep children with their parents. If you believe that your ex husband would be a threat to your son, or otherwise that his custody would  seriously detrimental to your son, consult with a family law attorney to see is there would be any way to prove this and to keep your son with your current husband, notwithstanding that he does not have parental rights.

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