Child Custody Granted By Will

by Grandpa from Pinellas County, Florida

Can child custody be granted by a will of the sole custody parent? My son stopped dating a woman when he found out she was pregnant. However, my wife and I were there when our first grandchild was born out of wedlock in September 2008.

We have continued our relationship with our grandson and his mother. We have taken care of him every weekend since he was 4 weeks old.

In the meantime, our son has never had any relationship with his son--no visits, no support--nothing.

Our son married a different woman, has multiple felonies, is a drug addict, is currently in jail for his second domestic abuse charge (assaulting his wife), and only cares about "his family" (Him, his wife, and their daughter). Our grandson's mother wants us to have custody of our grandson if anything happens to her-she is creating a will to indicate so.

Our son, because he is the father, says he will get custody and never let us see our grandson unless we pay for a lawyer to get him off on the domestic abuse charges. As the grandparents, do we have any options? Or do we just lose our grandson because we won't pay for his father's lawyer?

Answer to Florida Child Custody Question

Dear Grandpa,

I am sorry to hear of your troubles.

Unless your son has asserted his legal rights as a father, he might not have any rights to your grandson at all.

According to Florida Statutes,

63.054 Actions required by an unmarried biological father to establish parental rights; Florida Putative Father Registry. -- an unmarried biological father must take certain steps to preserve his parental rights. Until he takes those steps, he may not have any paternal rights at all.

And according to Florida Statute,
63.064 Persons whose consent to an adoption may be waived -

1) A parent who has deserted a child without means of identification or who has abandoned a child.

(2) A parent whose parental rights have been terminated by order of a court of competent jurisdiction

Florida Statute 63.032 Definitions. --As used in this chapter, the term:

(1) "Abandoned" means a situation in which the parent or person having legal custody of a child, while being able, makes no provision for the child's support and makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities.

If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.
In making this decision, the court may consider the conduct of a father towards the child's mother during her pregnancy.

Florida Statute 63.089 Proceeding to terminate parental rights pending adoption; hearing; grounds; dismissal of petition; judgment. --

(4) FINDING OF ABANDONMENT.--A finding of abandonment resulting in a termination of parental rights must be based upon clear and convincing evidence that a parent or person having legal custody has abandoned the child in accordance with the definition contained in s. 63.032.

A finding of abandonment may also be based upon emotional abuse or a refusal to provide reasonable financial support, when able, to a birth mother during her pregnancy.

(a) In making a determination of abandonment at a hearing for termination of parental rights under this chapter, the court shall consider, among other relevant factors not inconsistent with this section:

1. Whether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or the unborn child;

2. Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;

3. Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment;

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