Can my wife get custody of our son?

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son. My question is if I put it in my will that my brother will take care of my son should I pass, will that happen or can my wife get custody if she wants? Thanks.

ATTORNEY ANSWER:

As the child’s biological mother (same would apply to fathers in this situation), she will automatically be entitled to custody in the event you die, unless her parental rights have been terminated. The granting of sole legal and/or sole physical custody does not terminate parental rights of the other parent.  If you do not want your former wife to have custody, you would need to instruct your brother to file for Guardianship of your son in the event of your death.  You should state in your will that you do not want your former wife to get custody and should have a separate document stating the reason why you believe that she is unfit to have custody and why it is in your child’s best interests to be raised by your brother. You should leave sufficient funds to your brother for this purpose (perhaps having a small life insurance policy of $30,000.00   to cover any legal fees).  Your brother will have to prove that she is an unfit parent in order to be named Guardian of your son.

The Greater Lowell, Massachusetts Divorce Attorneys at Berid & Schutzbank serve all of Middlesex County, Essex County, Worcester County, and the Merrimack Valley region including Andover, Billerica, Burlington, Carlisle, Chelmsford, Dracut, Dunstable, Groton, Lawrence, Lowell, Methuen, North Andover, Pepperell, Tewksbury, Westford, and Wilmington Massachusetts.