Is there anything legally my father can do to get custody of my son if my Will states that he cannot have him?

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Is there anything legally my father can do to get custody of my son if my Will states that he cannot have him?

My mother and father split after some abuse. My mother has since remarried happily. We are writing a Will and in the case that both of us die, we would want my mother to have custody of my son. Since my father is legally a grandparent, would he have any chance of getting custody of my son? I worry about this since my biological dad is abusive and my son does not like even being around him. Do I have to specifically state this in a will that under no circumstances is he to go with him, or will my son go to whomever I specify in the Will? We will try and have visitation for in-laws too.

Asked on August 24, 2010 under Estate Planning, Texas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You are wise to plan ahead for this matter.  I would not do so, though, without consulting with ana attorney in your area. What you want to do is appoint your Mother as Guardian of your son should you and your wife pass away.  Can this be challenged?  Of course it can; this is America.  But you had a good idea to ask the attorney if you can put anything in the Will as to his prior behaviour and the reasons that has not been chosen to be guardian.  That may be superfluous but it may make you feel better. If your state recognizes the right of grandparents to have visitation he will be able to petition the Court as well as you in-laws. So give  your Mom enough power to be able to fight for at least supervised visitation.  Good luck. 


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