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juneafternoon
03-06-2008, 01:06 AM
Rich husband and wife have a 17-year-old daughter that was conceived back when they were teenagers. Shortly after, the husband got a vasectomy, so he’s probably sterile, but only he and the wife know this. Now, the wife shows up pregnant and she tries to convince the husband the baby is his. He’s convinced it’s not, but he doesn’t argue it out or ask for a DNA test––he just starts "working late" and basically goes MIA. The 17-year-old is psyched she’ll be getting a little sister, even after all these years. And then the mother dies of complications during the birth.

Because no lover steps forward to claim fathership of the baby, and no one knows of the husband's supposed sterile state, it is assumed that the husband is the father. His name goes down on the birth certificate. He doesn’t want anything to do with it though, and because his wife is dead, he starts binge drinking. The baby becomes the 17-year-old’s responsibility.

Now, the 17-year-old has to juggle grieving her mother’s death, a baby, and school, and then, later on, her father becomes abusive because of the alcohol. So she’s pretty much screwed, but since they’re an upstanding family in the society, she keeps things behind locked doors and goes through with it, blow by painful blow.

The moment she turns 18 and graduates from high school, she takes her inheritance from her mother and gets the hell out of her house with the baby. She threatens to expose the father if he doesn’t sign custody over to the baby. He signs the papers, and she leaves him forever.

Would this be plausible? Could a lover of some sort come out of the shadows and demand a DNA test and then the girl has to give up the baby? Would she even be allowed to hold custody of the baby at her age?

(Before you ask, this is pretty much skin-and-bones. It's sketchy here, but on paper it's much more...connected. It has nexus, lol.)

mscelina
03-06-2008, 01:24 AM
He'd have to show plausible reasons for wanting to prove paternity. It differs state to state as I understand it, but with the 17 year old's father signing away custody to the baby,in the eyes of the state HE is the presumed father with parental rights. If he signs them over to his daughter, then those rights would go to her. In order for a third party to try to claim paternity, he'd first have to show a judge the plausibility of the claim (i.e.--sexual relations with the biological mother and proof of the presumed father's sterility), get the judge to sign an order for DNA testing, and even then would have to go through a custody hearing and/or trial to gain custody of the infant. It would be a fairly long,drawn out process.

As best I can tell...;)

Williebee
03-06-2008, 01:37 AM
Everything mscelina said, plus--

You indicated a fairly well to do, perhaps prominent in the community, family.

If so, family lawyers could make the whole custody thing happen, so that she got the girl, without "the courts" getting involved. It would just be a Lawyer shows their family friend, the judge, the paperwork, and how she's got financial stability from her inheritance, etc. and paperwork "gets done".

Of course, now, if real father had video and testimony... maybe from when Mom went off with him to have the child...? And wanted to dredge up all the family dirt...? I don't know.

CasualObserver
03-06-2008, 01:50 AM
Let's assume an American setting, because that's the law with which I am most familiar. I am not an attorney.

Any number of states still have some version of the chattel laws on the books. Florida is one; Washington is another. In very simplistic terminology, this basically says that the wife and children of the marriage belong to the husband. Presumption of paternity even when confronted with overwhelming proof. Washington allows collection of child support even when it has been proven the child is not biologically related to the husband - he is the husband therefore he is the father. Period (well, period depending on how good your attorney is).

The biological father would have to prove paternity and then, in chattel states, probably sue the husband and/or petition the state for paternal rights. The last is, IIRC, fairly straightforward in WA, just file your proof and request at the courthouse and wait for processing.

Further complicating the matter are the legal laws concerning proper establishment of custody and psychological parent. Custody is not always automatic unless both parents were married at the time of birth, in which case the parents are automatically given joint custody until such time as a divorce or separation requires the custody be revisited. Unmarried parents must sue each other to establish proper custody; neither parent has custody without the lawsuit, the one who resides with the child merely has "possession". A psychological parent is one who is not biologically related to the child and perhaps not legally related either, but has taken on the duties and role of a parent for long enough that the court deems it in the child's interest to maintain that parental status - whether the psychological parent likes it or not (in some states this was the legal basis for suing a stepfather for child support).

Finally, we're down to the machinations and idiocy that is family court. Typically, whomever has possession of the child, keeps possession of the child and has the nastier attorney wins, regardless of any other circumstances. Imagine if someone kidnapped a child and then, five years later, the court said, "Well, the child has acclimated and it might upset them to change their living arrangements after so long, therefore... custody goes to the kidnapper."

Welcome to our legal system.

paprikapink
03-06-2008, 02:03 AM
Hooked me; great story, JA.

Celia Cyanide
03-06-2008, 02:13 AM
Rich husband and wife have a 17-year-old daughter that was conceived back when they were teenagers. Shortly after, the husband has his tubes tied, so heís probably sterile, but only he and the wife know this.

I don't know the answer to your question, but I just wanted to point out that men don't have falopian tubes, women do. Women "get their tubes tied," men get vasectomies.

Did you also post this in the story research forum? That would be a great place to get some answers, too.

Lauri B
03-06-2008, 02:16 AM
This is not the appropriate forum for this; I'm moving this to novels.

juneafternoon
03-06-2008, 02:25 AM
Thanks to all of you for your expertise!

My main thing was this: the 17-year-old is not stupid or naÔve. She knows that if she brings the abuse forward to courts, it'd mean the baby getting placed elsewhere in a foster home. (Another detail: they have no living relatives. Both parents were only children and the grandparents are all dead.) So she documents it (pictures--she's a strong little soldier) and then threatens her father with exposure if he doesn't sign the rights of the baby over. The thing that was bothering me was, if the child is not his and he knows it, does he still get to make that shot? We won't ever know, in the MS, who the father is. The lover in question isn't even ever identified.

Would the vasectomy be in any of the husband's medical files? I get that it's "assumed fatherhood" if he's the husband (they were married) but wouldn't a documented vasectomy be a little ... questions-raising?

Again, thank you!!

ETA: Celia - edited.

Devil Ledbetter
03-06-2008, 02:31 AM
In very simplistic terminology, this basically says that the wife and children of the marriage belong to the husband. Presumption of paternity even when confronted with overwhelming proof. Washington allows collection of child support even when it has been proven the child is not biologically related to the husband - he is the husband therefore he is the father. Period (well, period depending on how good your attorney is).

Absolutely, that's how it works. Husbands are considered the father regardless of paternity. I agree with the rest of your post too, especially about the courts view of "psychological parent" but didn't want to repost the whole thing.

There is almost no way the court would allow the 18-year-old to take custody of the baby, even if the father didn't want it. He'd have to be proven an unfit parent, and if that were the case, it's more than likely he'd be given several chances to clean up his act by Child Protective Services. If he failed, or the child was in immediate danger, the child would be placed with adult relatives or in foster care.

Technically, yes, an 18-year-old is an adult but would likely not be selected as a first (or second, or third) choice option for custody of a baby not her own. Stable environments are an important factor in custody, and a teen with a new apartment and a new job, for example, probably wouldn't be considered stable.

If a teen wants a baby, she's pretty much going to have to have one herself.

Might work for a book, though. You've got an interesting premise loaded with conflict, that's for sure.

Monkey
03-06-2008, 02:34 AM
I got custody of my step son shortly after his father and I divorced. I was barely 20 and he was about 7.

The mother had had her rights terminated due to abuse and then disappeared. Not even the cops could find her.

The father just wasn't ready or able to raise the child on his own.

I was the only mother that the child remembered and was best able and most willing to take care of him, so the father signed custody over to me. No court battle necessary. The mom can't fight it because all her rights are terminated. The grandmother, however, has threatened.

I took her threats seriously at first, but once my son had lived with me over a year I no longer worried. Courts like to leave kids in the possession of the person they are with, so long as they are happy and well-adjusted and the person in possession can show that they are able to keep things that way.



Oh, and guys do "get their tubes tied"...it's just not fallopian tubes, it's the vas deferens (sp?) - hence the name "vasectomy". Sometimes they are cut and tied or singed, sometimes they are clamped.

ETA: Medical records are privileged info and hard to acquire by outside parties. Besides, just because he has had a vasectomy doesn't mean that there's no way he's the father; they (VERY) occasionally reverse themselves...things grow back. Also, the father could simply sign the child over to his daughter by using a form called Power of Attorney. That document can be printed from any computer, and once notarized, it allows a person to act in parental stead on just about anything...enrolling a child in school or a hospital, for instance. No court or lawyers necessary at all. It's good until revoked by written notice (or on some forms, a set date).

juneafternoon
03-06-2008, 02:47 AM
The girl doesn't fight for custody. The husband in question doesn't even want anything to do with the baby, his only reason for keeping the baby would be to spite his daughter. I'm thinking the alcohol makes him see her as her mother (she probably resembles the wife a lot) and she takes care of the baby, just like the wife would. But when he threatens to bring up the physical abuse, he gets the family lawyers working quickly.

Monkey--that's basically what I was going for! (But no grandparents.. if anyone sues for custody it'd be the lover, and he was just a quick thing, he probably doesn't even know the woman got preggo or even if he did, he doesn't know it's his.) Although you'd be 2 years older, but that's really close.

Ahh I'm feeling a lot better about this. I was worried about the 18-year-old getting custody thing. But it seems possible! Woot! Now, getting this right for YA... lol.

CasualObserver
03-06-2008, 02:51 AM
There is almost no way the court would allow the 18-year-old to take custody of the baby, even if the father didn't want it. He'd have to be proven an unfit parent, and if that were the case, it's more than likely he'd be given several chances to clean up his act by Child Protective Services. If he failed, or the child was in immediate danger, the child would be placed with adult relatives or in foster care.

Technically, yes, an 18-year-old is an adult but would likely not be selected as a first (or second, or third) choice option for custody of a baby not her own. Stable environments are an important factor in custody, and a teen with a new apartment and a new job, for example, probably wouldn't be considered stable.

We could make this work believably for a book, though. The husband can be proved unfit through abuse and not a legal relative by blood or marriage (the mother died, therefore the marriage is ended). JA says there are no living relatives, which makes the sister not only the documentable psychological parent but also the next-of-kin. Sister has her inheritance from her mother, presumably significant bucks to stage a good court fight and provide a stable home life. So long as the sister doesn't leave the baby with the husband and sue for custody without residing with the child, this could be quite believable.

Celia Cyanide
03-06-2008, 02:53 AM
Would the vasectomy be in any of the husband's medical files?

Yes, it might be, but since medical records are private, they would not come out unless he brought them out himself. From your OP it sounds like he didn't want to go out of his way to prove the baby was not his, he just ran off.

Also (and I work in medical records, btw) clinics are not legally bound to keep adult medical records for more than 7 years. So if the man got a vasectomy soon after his 17 year old daughter was born, those medical records might be destroyed.

I hope that helps.

juneafternoon
03-06-2008, 03:10 AM
CO (sounds like a jail acronym ;) ) - Yes, the girl's inheritance is significant, so she wouldn't be residing under the bridge. But she wouldn't even get in a fight--the husband would renounce his paternal rights to the baby over to her. She's an adult, which is why I thought that might work. If anyone can think of any reason why it wouldn't, please tell me! :) The entire point of this is to make sure she DOESN'T have to go to court for the custody of the baby. A family lawyer could just draw up some sort of an agreement and have both sign, no?

Celia - thank you! That helps a lot!

Shweta
03-06-2008, 03:34 AM
Moved to story research. G'luck, JA, sounds like a great situation :)

juneafternoon
03-06-2008, 03:42 AM
This thread keeps getting bumped around, hehe. Poor baby :)

CasualObserver
03-06-2008, 03:44 AM
CO (sounds like a jail acronym ;) ) - Yes, the girl's inheritance is significant, so she wouldn't be residing under the bridge. But she wouldn't even get in a fight--the husband would renounce his paternal rights to the baby over to her. She's an adult, which is why I thought that might work. If anyone can think of any reason why it wouldn't, please tell me! :) The entire point of this is to make sure she DOESN'T have to go to court for the custody of the baby. A family lawyer could just draw up some sort of an agreement and have both sign, no?


Yeah, I can think of a way that wouldn't work. *chuckle* One cannot give their parental rights to another person; they can voluntarily terminate them, but not give them away as gifts. She will have to be awarded parental (or guardianship) rights on her own accord.

A family lawyer... yes and no. The family court judge has the power to waive an agreement reached by both interested parties if the judge deems that arrangement to be detrimental to the welfare of the child. But what someone else further up said is probably what you're looking for; the family is prominent and probably connected, so she has her high-powered attorney talk to the judge over drinks at the country club, "It'd be such a shame if these photos and the whole sordid story came out... Mr. Sampson's a pillar of the community and all that..." Voila, agreement signed by all parties and stamped by a judge.

juneafternoon
03-06-2008, 03:55 AM
Oo! That's a good idea! Once again, I love that I posted this on AW. Thank you, thank you, thank you!

Okay, the outline for this is coming together nicely. :D

Devil Ledbetter
03-06-2008, 05:53 AM
We could make this work believably for a book, though. The husband can be proved unfit through abuse and not a legal relative by blood or marriage (the mother died, therefore the marriage is ended). JA says there are no living relatives, which makes the sister not only the documentable psychological parent but also the next-of-kin. Sister has her inheritance from her mother, presumably significant bucks to stage a good court fight and provide a stable home life. So long as the sister doesn't leave the baby with the husband and sue for custody without residing with the child, this could be quite believable.Yes, absolutely that could work well for fiction.

Fenika
03-06-2008, 09:17 AM
I dunno if anyone mentioned this but I thought typical wills involved all the money going to the surviving husband/wife (and only if/when both passed would it go to any children or other relations). No point in handing a kid the money, even at age 18, if they have a living parent to support them... (generally speaking)

SmartAsh
03-06-2008, 09:46 AM
I dunno if anyone mentioned this but I thought typical wills involved all the money going to the surviving husband/wife (and only if/when both passed would it go to any children or other relations). No point in handing a kid the money, even at age 18, if they have a living parent to support them... (generally speaking)

Yes, I was thinking about the Will situation. Wife doesn't have to leave anything to Husband in Will; provided it's solely her property to pass along (and not marital property), she can gift everything to child. However, a minor is likely unable to collect, so the safest bet is to set up a Trust (and this can be done in the Will).

juneafternoon
03-06-2008, 01:41 PM
There's actually a reason the mother left an inheritance for her kid, lol. I might explore the mother's reasons more with a journal of sorts, since she's dead and can't speak.

And the girl is 18 before she collects. She waits until her birthday before demanding her inheritance.

escritora
03-06-2008, 06:51 PM
Juneafternoon,

Where does your story take place? In US? Brazil? Someplace else?

My parents live in Puerto Rico where the inhertiance laws are different than described on this thread. If a husband or wife dies property must be split amongst the living spouse and the children. The living spouse is entitled to 50% and the other 50% is divided equally among the children.

I realize the setting of your book probably isn't Puerto Rico, but I brought up the above point because it's important for you to research the laws where your story takes place.

juneafternoon
03-06-2008, 08:40 PM
Hey! :) It takes place somewhere in the US. I'm trying to figure out where. Maybe somewhere in New England... One of the plotlines has to do with Ivy League, so I think it'd be easier to execute if the girl was in, say, NJ :) But yeah, definitely looking to get the laws right, lol.

Leva
03-06-2008, 08:54 PM
She could probably legally adopt him, particularly if the father was cooperating. I know someone who was raised by a (much) older sister; the older sister legally adopted her baby sister after her parents died.

Though by federal law, you have to be 21 to legally adopt in the US, I do believe.

-- Leva

escritora
03-06-2008, 09:44 PM
Since Puerto Rico is part of the US and their inhertance laws are different than where I live (New York). It seems to me that inhertance laws are state and common wealth issues, not federal ones.

If inhertance laws were federal, then Puerto Rico would have to follow the said laws. I bring this up because if the setting of your book is in NJ or Mass, then those are the laws that will interest you. And some of the advice provided on this thread may not be correct.

Some adoption laws vary from state-to-state as well. For example, gay people can't adopt a child in Florida, but they can adopt a child in New York. I bring this up because there may be other state adoption laws that you need to be aware of.

Here's information on relative adoptions (http://relative.adoption.com/).

Here's information on New Jersey adoptions (http://laws.adoption.com/statutes/new-jersey-adoption-laws.html)

Here's information on Mass Adoptions. (http://massachusetts.adoption.com/)

SmartAsh
03-06-2008, 10:33 PM
Yes, all of these laws vary from state to state. A good place for people without legal experience to get info is findlaw.com. You can search by topic and then get linked to state-specific statutes.

juneafternoon
03-06-2008, 11:59 PM
Oh wow, this is all very helpful. I'm looking at findlaw right now, and I'm reading a zillion links stemming from the ones escritora gave me on adoption.com :D

... and now I'm reading over it, and NJ's laws require an "approved agency" to look over the parent's surrender of the child, and then require a whole lot of umm... processes. What a nightmare >.< I thought it was just a simple, "I don't want this child" from the remaining biological parent and "I do" from the sibling who wants to adopt.

Hmm, this is going to be complicated.

escritora
03-07-2008, 12:24 AM
I donít know if this will be helpful or more confusing, but hereís a thought: Most likely a parent will not leave an eighteen-year-old complete access to her inheritance and the inheritance of a sibling. Usually an executor will be in charge of the money. This may be helpful to you because your character can demonstrate during the adoption hearing that not only is she financially stable, but there is someone overseeing expenditures.

The executor may also be able to help with the custody issue. With his or her connections, your character may be able to cut through red tape. Or the executor could recommend legal guardianship while the adoption goes through. Perhaps legal guardianship is less involved.

Or perhaps you can simply mention the adoption process in your book without going into that much detail. For example, your MC and her father agree to the terms. Then the book is fastforwarded to when the adoption has already gone through and your MC can make a statement such as, "After two long years..." Readers don't need to know the details of the adoption. But if they do because of the biological father coming into the picture, then details can be revealed throughout the book.

Just food for thought.

DeleyanLee
03-07-2008, 12:26 AM
Hey! :) It takes place somewhere in the US. I'm trying to figure out where. Maybe somewhere in New England... One of the plotlines has to do with Ivy League, so I think it'd be easier to execute if the girl was in, say, NJ :) But yeah, definitely looking to get the laws right, lol.

FYI, my daughter's in Yale, which is definitely Ivy League. Just in her dorm, there are girls from Detroit, St. Louis, Puerto Rico, Kenya, New Jersey and Atlanta. (2 girls per room, 3 rooms to the suite).

Getting educated doesn't mean you're from around the university any more, m'dear. ;)


<snipped>
(Before you ask, this is pretty much skin-and-bones. It's sketchy here, but on paper it's much more...connected. It has nexus, lol.)

Just curious--is this the story you want to tell or backstory of the story you want to tell? Sure hope it's the story.

juneafternoon
03-07-2008, 03:18 AM
Escritora - love it. I was thinking of something of the sort, but didn't know the correct term for it. "Executor". There. Do you know if they'd manage an allowance of sorts?

Thank you :D

Delayan, yeah I know, but I feel northeast US is the best place for this story. I've seen people from all over the place get into Yale, so I know it's not exclusive to NE states :) Oh, and wow about your daughter! That must be awesome.

As for the story, I'll be telling the story after her mother's death. This is geared to be YA, so I'll be pursuing it through the eyes of my 17 year old protag. However, I do plan on having layers to the story (peel the onion sorta thing) and that takes backstory being integrated in the plot. There's who her mother had an affair with, why, why she left the girl an inheritance instead of doing a joint will with the husband, the entire mystery of where the baby came from ... And, fortunately, it's all coming together for me.

Thank you guys so much for all your help. I honestly appreciate it.

JanDarby
03-07-2008, 03:44 AM
Two things:

First, in many states you canNOT disinherit a spouse without his cooperation. You can disinherit kids and other relatives, but not the spouse. If your will leaves the spouse zero, then the spouse can file a claim to get a statutorily-set portion (a third in Massachusetts) of the estate, which will be awarded automatically, regardless of whatever's in the will.

Second, it sounds like you don't really need to have the father give up parental rights, just consent to the teen's guardianship. Giving someone physical custody of the kid (which only requires a judge to conclude that it be in the kid's best interest) is different from, and much easier than, giving up parental rights (which requires proof of unfitness of the parent -- a very hard burden to prove -- AND the kid's best interest). If the teen applied for guardianship, and the father signed the petition assenting to it, it would be a simple, uncontested legal process with no real stigma attached to it, especially given society's persistent belief that men are incapable of, or at least less skilled at, child-rearing. He could shrug it off as "too busy with work, and the teen's home with the kid anyway, so it's more convenient this way."

In any event, some kind of legal paperwork would be needed in order to enroll the kid in school eventually and to consent to medical treatment, etc., and I doubt a school or hospital would accept a private agreement, but would require an official guardianship petition and decree.

JD, not giving individual legal advice, just general information

escritora
03-07-2008, 03:48 AM
An executor carries out the directions of the will, pays the taxes, ensures creditors are paid and so on. Once that is complete, the executor becomes the executorial trustee. This is a the person who manages the estate.

I know someone who has an executorial trustee. From my understanding, this is how it works: he receives 10,000 a month as an allowance (what I call play money) and on top of that the executorial trustee cuts a check directly to the creditors for all the expenses (i.e. mortage, insurance and so on). If my former acquantaince wanted to purchase a new car and not use his allowance, he had to ask the executorial trustee. It was up to the trustee whether or not he would release additional funds. If his decision was yes, then he would cut a check directly to the car dealer.

ETA: Please know this is my understanding and I may not have all of the facts correct. So please conduct research.

juneafternoon
03-07-2008, 05:07 AM
Let's say the grandparents left the mother money using an executioner. It states in the will that the money goes to the OFFSPRING of the mother in the event of her death--then does that excuse the father getting nothing? OR, another scenario: the mother left her daughter money, but also left the father something?

Yeah I was looking at guardianship from the links escritora gave me. Sounds like a much easier process, and enough to end the book in peace. Whatever happens after that is extra story and the characters shall cross that bridge when they get there. I'm not part of that journey :)

Thanks, again, everyone.

escritora
03-07-2008, 05:55 AM
the mother left her daughter money, but also left the father something?

This one feels like it would be less complicated.

Jenan Mac
03-07-2008, 04:59 PM
There's actually a reason the mother left an inheritance for her kid, lol. I might explore the mother's reasons more with a journal of sorts, since she's dead and can't speak.

And the girl is 18 before she collects. She waits until her birthday before demanding her inheritance.

It would have to be stipulated in the trust that she would receive all monies at eighteen, which is unusual. Most trust fund babies I know (and considering my own sadly non-wealthy state I know a ridiculous number of them) don't get their money until 21, 25, or-- in the case of my neice-- 30. What might make your character's financial situation stronger, though is for Mum to have set it up so that she starts drawing an income from the trust at 18 (for college, or whatever), with the principal to be delivered later. This would not only show the courts she had money, but an undeniably steady income, and more to come. No chance she'd blow it on concerts and drinking and be left penniless with the kid two years later.

ideagirl
03-31-2008, 02:43 AM
Some corrections to what CasualObserver said (and I am an attorney): chattel is personal property (e.g. your car, your TV...), not people. The only context in which I've ever seen the phrase "chattel laws" is slavery--when it was possible for one human being to own another one, the one owned was considered "chattel" (personal property). That doesn't have anything to do with family law, so it's definitely not a phrase to use in the story that the original poster was asking about.

Most if not all states have legal presumptions in place that a child born to a married woman is the child of her husband. A legal presumption basically means, "under the law, X is true unless proven otherwise." So, under the law a married woman's child is her husband's child, unless proven otherwise. In the situation described, it doesn't sound like a lover would ever be able to prove the kid was his, for several reasons, the simplest of which is that a court would not allow him to have DNA tests done on the kid without the permission of that child's legal father--i.e., the husband of the woman who gave birth to the kid. (Note: If Anna Nicole Smith's boyfriend had been married to her, that photographer boyfriend of hers would have had a very hard time indeed proving that the child was his.)

It's true that many (most?) states will make a man pay child support even when the kid's not his, ***IF*** he remained married to the mother for long enough after the kid's birth for the kid to bond with him. (If he found out the kid wasn't his and divorced her in response, it would greatly surprise me if the judge didn't just laugh a child support request right out of court.) I don't think the law should force men to pay support for other men's kids at all, but whatever, that's how the law works in most states.

However, I'm puzzled by the phrase "psychological parent" (this is not, to my knowledge, a legal phrase at all), and the statements about kidnappers keeping kids are ridiculous. As anyone who's heard of Baby Jessica knows, biological parents can get their kids back even when it's incredibly psychologically damaging to the child. This is part of the reason so many people are adopting from foreign countries these days--adopting from America creates the risk that five-ten years down the line, the kid's biological dad and/or mom might resurface and try to take the kid back.

Generally speaking, a court's duty when it's deciding custody is to figure out what the child's "best interests" are--that is, what is in the kid's best interest: living with its mom, or its dad?--and then ordering custody in line with those interests. But that flies out the window when the people fighting over custody are a parent and a non-parent, or a biological parent and an adoptive parent (if the biological parent can show that he/she never properly gave up his/her parental rights). In those cases, biology wins, unless the bio-parent is obviously unfit.

ideagirl
03-31-2008, 02:44 AM
It may be possible to disinherit a spouse by setting up a trust, and putting everything in the trust instead of disposing of it through a will, but I'm not sure that would work and even if it did, it's asking for a lawsuit (the surviving spouse could sue to set aside the trust, yada yada). So the best approach is, leave the spouse something but also leave the daughter something.

If you phrase the mom's will/trust as leaving money to her children, then the newborn would get something too, and a court would probably have to oversee how that would happen if the mom hadn't planned for it (this is common--people make wills and then forget about them for years; this happened with Anna Nicole, her will was not set up to provide for her daughter, so there was a lawsuit over that). So, set up the mom's estate so she leaves something to her husband--say, 1/3; that's often what the spousal share is, so he ought to be happy enough with that not to bring suit against her estate--and leave the rest to the daughter, but not directly--i.e., don't leave cash or a house or stocks to her; what rich people generally do is leave it in trust, so the girl gets income on it until she reaches X age, at which point she can start using the principal.

The income can either be a set amount per year or just literally the income (i.e., the interest on the money in the trust). If it's the income, then you can ballpark that it would normally be about 5% a year--in other words, for your heroine to get $5,000 a year from the trust, her mother would have to leave her $100,000 in trust. So if you want her getting a good amount of income, her mother would need to leave her a LOT of money ($1 million in trust = $50k/year...).