On Picking Guardians for Minor Children

The news in recent weeks has brought to light several issues that arise when a parent of minor children passes away. Those minor children are not legally able to fend for themselves and so the local courts take the position that they need protection. Depending upon the circumstances, the judge can be a little or a lot involved in the lives of children upon the death of a parent.

When reading about Michael Jackson’s children being bounced around from one custodian to another, you realize that the continuity in a child’s life is very fragile. The child might want to spend the night at his or her grandma’s house once or twice a year, but may not want to move in with that same grandmother and live there for the rest of his or her life.

And what about the circumstances that Mr. Jackson created when he appointed a non-family member to be the guardian? If you followed the news story, you know that he appointed Diana Ross to be the guardian of his children. These are children with a living, breathing mother of their own who could rear them. What rights does she have?

So where does this leave us? If you are the parent of a minor child, you would be well-advised to make certain that your will is written and that a custodial guardian is appointed to take your children in, when and if you die before they turn 18. A custodial guardian is a person who takes custody of the child, moves that child into his or her home and raises the child.

So what criteria should you use to select the guardian of your minor child or children? You should use the criteria that the court uses when they determine a custody case. There are quite a few factors, and we only have space for a few, so think about the actual dwelling into which you intend your child to move. Is it large enough to accommodate your child? Will he have his own bedroom (or bed)? And what type of neighborhood will he be moving into? If he has lived on a farm and you send him to Aunt Sue’s house in the city, how will he adjust?

And what about Aunt Sue? She may be your sister, but does she share your philosophies when it comes to raising children? What about discipline or educational goals? Not everyone believes that college is the answer, so you will want to think about that. Does Sue practice the same religion that you do? Will your son be able to complete his religious training and indoctrination?

Another big unknown is Aunt Sue’s husband and family. You may be very comfortable naming Aunt Sue, but her husband may have an objection or the cousins might be unwilling to open their home and hearts to your child. Maybe you need to come back to the idea of having grandma take care of your child until he reaches 18.

So when is it appropriate to go outside the family to seek someone else to serve as guardian? Some of us do not have siblings who would be suitable to appoint, or they might decline such an appointment. I had one case where both of the parents were only children with deceased parents. In that case, they asked a friend to step in if the worst happened, and the friend agreed to do so.

This brings us to one of the most important components of this whole child custody/guardian debate. When should you tell the potential guardian? The answer is before you go to the attorney’s office to write the will. This way, you can ask some of these questions in advance, and gauge the responses. And should you tell the child? Depending on the age and maturity of the child, it makes perfect sense in most cases to address this question with them so that they know what is to become of them if their worst fears are realized.