I am divorced and have custody of our two children. I have recently been diagnosed as having cancer and am currently undergoing treatment.I am worried about what would happen to the children should I die.Their father lives abroad and has not contacted them for several years. He is an abusive person. My brother lives nearby and the children have a close relationship with him. He said that he would be willing to bring them up for me if the need arises. Can I do anything like making a will to ensure my brother and not my “ex” would get custody if I die ?
By: דיאנה שאלתיאל•Published on: 03 May, 2022Both parents are the natural guardians of their children and this normally applies even when they are divorced. If the custodial parent dies the non-custodial parent is usually granted custody as he/she is the remaining natural guardian. Thus, for example, if the mother has custody and the father has visitation rights and a reasonable relationship with the children, then he will get custody. However, in an exceptional situation like yours, where the father exists and is technically the children’s natural guardian but has severed all connection with his offspring and fulfills no parenting role at all, it could be possible for your brother to apply for and be awarded custody of the children at the family court. Though an instruction in your will about who should bring them up should you die would not be legally binding, your wishes would be taken into account by the judge. Another option would be to make an affidavit stating your preferences. If a legal battle were, however , to ensure between your brother and your “ex” the court would decide, putting the children’s welfare first.