Wills and Guardianship for New Husband

Yes.

Why would you consider it "taking away" if your daughter went to her own father, with whom she has a regular relationship??

Unless her father was abusive in any way, which he clearly is not since there is a regular relationship, or unless he would not want your daugher and therefore would relinquish his rights, what would your reason be? I am a stepmother and I understand the love and bond that form between your husband and your daughter, but I couldn't, in good conscience, deprive my child of his father! I think it would be nice if your ex and his wife included regular visitation with your husband, should something happen to you, but it makes no sense to try to set up a guardianship that surely will not hold up in any court, nor should it.

As biological parent he would legally have her and there is not much you can do about it. All he has to do is call the police and have them remove her from your current hubby's home no matter what your last wishes are. He is her parent, not your current hubby.

Your ex-husband can petition your Will and in this case could likely gain custody of his child unless there is a genuine reason why he should not have her.

I would strongly suggest speaking with your ex-husband about this. If he knows about it ahead of time and has been part of the discussion and is somehow included, he is less likely to contest. If he's okay with her stepfather retaining custody, make sure there is language in your guardianship papers regarding maintaining visitation and "who-pays-for-what" in the future (medical, education, etc). Right now everything has your name on it.

Make sure that all stakeholders are "heard" before making any final decisions. Remember that you can always change the wording in the future as circumstances change. Also remember that should something (God forbid) happen to you while your child is a minor, it is going to be traumatic and you don't want her up-rooted or the center of a legal battle.

Yes, her father could be given custody. No matter what has been put into writing, after a custodial parent dies a judge decides who gets custody of the children. Your wishes are taken into account, but so are the stated wishes of every other person who has an interest in your child. Her father and her grandmother would likely have the most influence on a judge. Stepparents (and I am one) have very little legal influence.

Yes

I just had to add it amazes me that the question is asked. Yet I have seen it soooo many times here. Divorce does not take away anyone's legal right to their child or children. This is why I find this question strange. He is her father, not your new husband, not your mom. Actually your mom has a better chance of getting guardianship than your husband.

Perhaps look at it this way, reverse roles, do you think it would be rational to give your ex's wife custody of your child if something happened to him? She would have full power to refuse you ever seeing your child. It is not to say that your husband would do this but he would have the right to do it.

No court would grant your husband guardianship unless there is proof your ex abuses your daughter. So to reaffirm my initial yes, yes if your ex wants custody of your daughter upon your death he will get it no matter what you put in your will.

I read your edit and I don't understand why you don't just talk to your ex about this. If he is okay with it there are documents that can be drawn up. If he isn't then you know your answer, your husband will not get custody.

The only way to do this legally is for your ex-husband to give up his parental rights. Unlikely, I would imagine. But the legalities don't have to dictate what is the best decision, necessarily.

When I got remarried, I wanted the same thing - for my new husband to raise my older children, and maintain the household in the event of my death. He was willing, and we put that intention into the will. However, we knew that legally, my ex would still have 'dibs'. Putting it into the will was just a way to make my intentions clear, and to show that my new husband was willing and able to maintain this responsibility in the event of my death. We made my ex-h aware of this, but did not ask him to give up his legal rights. We said in a letter, that we just wanted him to know about it, and that if anything ever 'happened' to me, we would sort things out then in the best interests of the children.

Unless your health is in jeopardy, or you habitually do risky things like drive drunk or use drugs or base jump, the likelihood of you dying in the next 10 year is probably pretty small.

If you did die, the courts would grant custody to your husband. However, if time has passed, and relations have stayed cordial, he may not see fit to 'sue' to get his daughter back. If he respects your husband, and sees that the home situation is good, he may realize that the best thing would be to meet and make arrangements to let her finish out her childhood years with your new husband. He could visit her more, and do right by her without disrupting her life even more. Also, years down the road, his own situation may preclude him suing for full custody. And also, once she is a bit older, she may have some say in the matter, and her wishes should be considered.

Best of luck in sorting out what is best for your daughter and your family. In my case, we have made it to where my kids from my first marriage are now 19 and 18, with no lawyers in sight. :)

I believe so. Blood ties usually hold up best in court.

Contact a lawyer. Laws vary so much state to state on this. Find a family lawyer in your area and call them. They should be able to answer that question for you on the phone for free. And that way you will have the correct, legal answer.

I would consult a lawyer
However in my case I was guardian of a child (now adopted) and in the event of my death I wanted my husband to obtain guardian and in the event of both deaths for my brother to get her.
the lawyer said that in the event of the death my brother was to immediatly take possession of my daughter and get the will and file for guardianship.
the biologicals could fight that in court
In my husbands case since she was being raised with us it would most likely be that she would stay with him as we were a couple and that is/ was her home.
In the event of my brother - they would take my wishes into account and the closeness of my brother and the bio's (relatives at that) would have a hard time getting her.
I believe your husband would have a good chance to keep her as she is being raised as him a parent. Depending on the age they may ask her where she wishes to live and that too will weigh heavy.
If your husband and your ex have a good relationship as far as the ex realizes he still gets visitation without all the parenting duties I am sure he would not even fight it.