Question: Our daughter died in a traffic accident this past October leaving two children, ages nine and 11. When she divorced seven years ago, she was given custody. Her ex got visitation rights during the weekends, for six weeks during the summer, half of the holidays, etc.

Because our daughter worried about her ex-husband’s mental illness and alcoholism, she signed a will shortly after her divorce appointing me and her father as custodians and guardians for the children and directing that her ex not receive custody.

We couldn’t work out the custody and visitation with our ex-son-in-law because he wanted the children with him, so my husband and I hired a lawyer and filed for custody. Our lawyer tells us that because of the mental illness and alcoholism of the children’s father, we should win. But he has a good lawyer, and all we can prove about his problems happened before the divorce. He receives Social Security disability because he is unable to work due to his condition, but he has turned this into a positive, saying that he has the time to care for the kids and will keep them in the same house where he lives with his widowed mother. Are my husband and I are wasting our time?

Answer: As your daughter’s fiduciaries, you have an obligation to attempt to see that her wishes are carried out; however, your daughter appointing you and your husband as custodians and guardians of the children does not take precedence over the ruling by a family court judge after he has heard the evidence. Nor do your daughter’s appointments change the law that unless there are conditions that pose serious threats of harm to the children, natural parents generally have a right to have custody of their children.

So, when there is a dispute between a parent (your former son-in-law) and a non-parent, the courts generally won’t deprive the parent of custody unless, after a hearing, there is evidence of substantial harm to the child.

Your former son-in-law has had continuing visitation with the children, including weekend overnights and summertime weeks, for more than seven years. Apparently there were no incidents during this time or your daughter surely would have asked that his visits be reduced or restricted or supervised. But she didn’t, and this means that the children’s father has established a seven-year track record of providing them a good environment.

Even if he had untreated mental illness and alcoholism at the time of divorce, you have no other evidence of exacerbation of these problems. Apparently, the Social Security Administration believes he has been treated properly. As a result, there seems to be no substantive proof that he is a danger to his children’s health.

You could hire an “expert” psychiatrist who, after looking at your former son-in-law’s medical records, may opine that he could be a danger to his children. But your daughter’s ex would probably bring in his treating psychiatrist who would say he has not been and is not currently a danger to his children. The judge hearing the case would give greater weight to the expert he found most credible, and award custody as he deemed appropriate under the facts.

We suggest you go back to the drawing board and see what evidence you actually have to prove your case. If it’s as slim as it appears, talk to your lawyer about negotiating your visitation rights with the children while there is still room to talk.