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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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I am a single Father, of two children. My ex sees the children

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I am a single Father, of two children.

My ex see's the children every other weekend my mutual consent. There are no court orders for residency.

I am currently writing a will.
Is tehre anything I can do to stop her getting custody of the children if I die? She lives in a 1 bed flat, and does not have the means to support the children.

Many thanks
Simon Dancy
Hello and thanks for your question.

I see that your ex sees the children on alternate weekends by mutal consent - which is good for the children so that they can maintain their relationship with their mother, and good for her too, and gives you a break. And it says to me that you are accept that when the children are with their mother, they are safe, happy and well-looked after by her.

Apart from the size of her accommodation and her lack of means, why do you not want the children's mother to look after the children when you die?

Do you anticipate dying in the near future?
Who would you prefer the children to be looked after if you die?
What relationship does this person have with the children - how often do the children see him/her?
Hello again

I see that you have looked at what I have asked but not responded. I would like to be able to give you a fair and properly considered answer - so that's why I've asked these questions. I would like to help - if you can let me have the information requested, I will do my very best to give you my honest opinion about your situation.
Customer: replied 4 years ago.



Apologies for not responding sooner, will leave excellent feedback shortly...


With regards XXXXX XXXXX additional questions....


Firstly, I don't plan on dying any time soon...


Secondly...some of the reasons I do not want the children staying with her mother are:-

She is an unsuitable role model (our relationship ended due to her having multiple affairs...some at the same time)

I spent 10 years of my life supporting her 100% and do not want her to get her hands on any of the money I am leaving for the children (in trust)

She has no idea how to look after children, her idea was and is always to just shout at them.

She lives in a 1 bedroom maisonette, and the two nights a month they spend with her they all have to share the one bedroom...

According to the CSA her declared income is £800 a month, this is insufficient to support the children's current lifestyle....

I could continue.......


With regards XXXXX XXXXX the children should live with..

I have been in a relationship for the last 5 months, which is developing and going very well...Ultimately I can see me getting married to my new partner, and my children have both said that they would rather live with her and just see their mother as they currently do.

Do I need their mothers permission for my new partner (Future wife) to adopt my kids?


In the absence of the above scenario, they would prefer to go and live with my sister in Wales with their cousin. This however would limit their access to their mother, as my sister lives >250 miles away.


Many thanks


Hello again & thanks for the extra info.

Glad to hear your death is not imminent!

I would advise you to get expert advice from a solicitor that specialises in wills and probate because your will needs to do two things in addition to the normal straighforward legacies to individuals, and stating what is to happen to the rest of your estate not covered by specific legacies:-

a) in your will, you need to appoint a guardian for your children.

b) in your will, you need to specify what assets are to be held in trust for your child and (very importantly) appoint the trustees of that trust. That's in addition to appointing executors of your estate overall (although I believe that it may be possible for the same people to be both – but check with a specialist solicitor about that. )

You need to speak to the proposed guardian and the proposed trustees to be sure that they will agree to take on these roles, which would mean taking on serious responsibilities on their part.

After your death, the children's guardian will be as stated in your will – unless their mother succeeds in an application to court to challenge that appointment. There is nothing that you can do to prevent any application to court by the children's mother. She has a legal right as the children's mother to make the application to court. Her application would be for a residence order.

A residence order is an order the intention of which is to settle permanently with whom children are to live. A residence order automatically confers parental responsibilty on the person in whose favour the residence order is made, if they do not already have it. (Mothers automatically have parental responsibilty).The person whose name is XXXXX XXXXX residence order can make all day-to-day decisions concerning the children eg what to eat for tea, what time to go to bed etc – but they must still get consent of all others with parental responsibilty (eg the mother) or leave of the court for all major decisions in a child's life eg whether or not to change a child's name, or to emigrate with a child.

The family court will decide in whose favour to award the residence order not on the basis of who shouts loudest, but on what is in the best interests of the children.

If the legal guardian appointed in your will is your current partner, with whom the children have been living for some time, and the children are happy in her care and being properly looked after by her, then it is highly likely that the family court will award the residence order in favour of your partner. (Whether or not she is your wife by the date of your death is irrelevant to the court's considerations). In general, the court does not like to disrupt children by moving them unless absolutely necessary for their welfare. The older the children are by the date of your death, the more their wishes and feelings will be taken into account – especially if they are 12, 13 14 or older. But their feelings will not be the deciding factor if the court felt that for their welfare they would be better off living with their mother – but from you say about their mother's lifestyle, this is not likely.

The mother's low income and small flat would not be the deciding factor because if she obtained a residence order in her favour, she would be eligible for a greater range of benefits, and eligible to apply for rehousing. The court will give much more weight to non-financial factors in reaching its decision.

The court is much more likely to decide in favour of the mother if it is your sister that is appointed legal guardian a) because from what you say, the children do not see her often and do not have a close relationship with her b) the court in such circumstances are more likely to favour a natural parent c) the court will also want to be reassured that the children will be able to maintain their relationship with their mother – but that is not to say that I can predict the outcome of any court case. The court will investigate thoroughly with whom the children would be best off IF (and only if) their mother makes a formal application to court to challenge the person appointed in your will as the children's guardian.

However, even if the court awards the residence order to either your partner or your sister, that does NOT mean that that person would have the right to cut off all contact between the children and their mother. The court is very keen that children should be able to maintain contact with the parent they do not live with. If either your partner or your sister indicated that they DID want to stop contact between the children and their mother, that could influence the court AGAINST making the residence order in their name.

It is likely that at the same time as making a residence order in favour of your partner, the court would also make a contact order in favour of the children's mother, just so that everyone was clear about the arrangements for the children to continue to see their mother regularly. (The children's mother even if she did not challenge the person appointed as guardian in your will could at any time apply for a defined contact order if she felt that her contact with the children was being reduced unfairly.)

Adoption is not the appropriate course of action in your case. Adoption is not used where the child is a known family member (except sometimes very rarely in care cases). The adoption process requires a lengthy social services asessment of the potential adopters which can take up to a year to be prepared, plus a formal application to court which would involve the children's mother, where the court considers whether or not it would be appropriate to dispense with her consent. Adoption ends any parental rights of the natural parent, and the court is not going to order that in your case.

In theory you and your partner could now apply for a residence order in your joint names, if you wanted to secure your partner's legal position. But I would strongly advise against taking such action now because a) applying to court is stressful (not just for you and your partner, but for the children as well), time-consuming and expensive. b) you have an arrangement with the children's mother which seems to be working, despite your criticisms of her. If you go to court now all that will be put in question. c) even if you were granted a residence order now, the children's mother could still reapply to court on your death on the grounds that that had been a change of circumstances, and ask the court to look at the situation again.

I hope this helps and I wish you the best of luck.

Thanks and best wishes...

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