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The Guardianship Jungle

Jul12

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Dear Amy,

Advice Smackdown ArchivesI apologize in advance for the length of this letter!  But our dilemma is so intractable we are quite at a loss.  My husband and I are in our 30s have just had our first child, prompting us to do the responsible thing and start Making Arrangements For His Future.  We have already bought life insurance and made out our will, but the question of who would be his guardian in the event of our untimely deaths has been a sticking point for us.

Not the decision of who it would be – that’s the easy part.  I am an only child, and my parents are quite a bit older – I’ve already talked to them and they agree they would not be the best guardians for a young child.   My husband has two younger siblings – one 19 and one 12, both clearly too young.   We also agree that his parents are not an option – not only have they declared themselves to be “tired of raising kids” but their household is a deeply dysfunctional one.  Without getting into the gory details, suffice it to say my husband  - while never physically abused – was deeply damaged by his mother’s emotional imbalances, immaturity and manipulative mood swings, and went through years of therapy before we was able to overcome those wounds and form healthy relationships with others.  He is determined that our son not grow up in her care, and I support him.

He has an Aunt who is our clear choice – his mother’s younger sister, with whom he has always been close.   She is younger, has two kids 8 and 13, her husband is great, and they have both the room and the financial means to care for a third.  She has visited us often, and is quite attached to her little great-nephew.   We love her.

Here’s our problem – while we have every reason to believe the Aunt would be delighted to take in our boy, we haven’t asked her. And this is because we don’t know how to tell my husband’s mother that she is not our choice.  Despite saying countless times how tired she is of raising kids (with her kids spaced so far apart she’s been at it for 30+ years), as you know, grandkids bring out the urge to snuggle and squeeze all over again.  Combine that with her clinical depression and immature self-centeredness, she will be enraged when she learns we haven’t chosen her and it may permanently rupture the fragile truce between her and my husband, and make a huge rift in the family.   She may cut off all contact between my husband and his younger brother and sister (to whom he is devoted) and demand that her siblings do the same.   We have seen her do this with other people in the family over far smaller slights – and fear for our role in this large, and otherwise wonderful family community.

So, we haven’t asked the Aunt about custody because we don’t want to put her in a position where she would need to conceal it from her sister.   It’s unfair to ask her to – plus, if my mother-in-law does find out (as people inevitably seem to do once some people are told) she will be equally furious at her sister.  And lastly, it seems a painful shame to kick off such a rage firestorm for something with such a small chance of happening as our simultaneous deaths.

Frankly, we don’t see any way through – except perhaps to fill out our will, naming the Aunt as the guardian, without telling anyone. If the unimaginable happens, we know she wouldn’t refuse custody.  What’s more, in that scenario all the rage and fury from my mother-in-law would (perhaps deservedly) be on our heads – but we’d already be dead!  We could take it!  We wouldn’t care if she never forgave us – as long as our boy was safe.

It may be cowardly and it feels wrong – but all the other options seem worse.  We want our boy to know all his aunts/uncles/cousins and grow up in the happy chaos of my husband’s family. Given the small probabilities at play here, should we keep our decision quiet, enclose lots of explanatory letters with our will, and hope this issue never comes up?

Thanks in advance for your perspective – it’s always so fair and feels so right!

B.K.

Whoa. Whoa whoa whoa. Let’s all simmer down for a second here.

1) Good for you and your husband for thinking about wills and guardians and such.

2) Now stop with the overthinking and the world’s worst-case scenarios.

I’ve read your question a couple times and am missing what would be a key game-changer: Your mother-in-law has NOT, as far as I can tell, actually requested that you make her your son’s guardian, or inquired as to who is his guardian, or…basically indicated that she cares about this issue as much as you and your husband are assuming she does. Or will. Or might. Obviously you’re coming up with these predictions based on past behavior, but…I simply don’t get the LEVEL of preemptive worry you guys are engaged in here.

Do you know how many times my husband and I have been asked who we’ve chosen as the potential guardian for our children? Or whether we’ve even drawn up a will or made arrangements or ANY QUESTION ABOUT THIS TOPIC AT ALL? Zero. None. Zero none times. It’s not exactly a popular topic for Thanksgiving dinner, nor is it something that requires mailed announcements or a party or a secret ceremony in the Stonecutter’s Lodge, since you’re talking legal guardian and not religious godparent. It’s between you, your attorney and the potential guardian.

Because yes, you MUST talk to your husband’s aunt before you put her name down in your will. That’s just…not fair to anyone, to potentially blindside her with something like that, and to turn your son into some kind of huge life-changing bombshell at a very critical, upsetting time. I’m SURE she’ll be fine with it, as you are, but still. Uh-uh. I cannot get behind the SURPRIZ GODPARUNT thing because you’ve convinced yourself that your MIL wants something that she hasn’t actually indicated that she wants or expects. Maybe her “done having kids” comments are, in fact, coded messages that while she adores grandchildren, she sure as hell doesn’t want to be saddled with them permanently.

I also disagree that it’s “unfair” to ask your aunt to NOT share the news of her guardianship role with anyone. NO ONE has to know that you’ve made any sort of decision, and you can absolutely deflect the question as too personal, too morbid, if someone does start poking around about the future of your estate and heirs. I just…can’t wrap my mind around this being a topic that comes up in daily conversation or why you would ever tell ANYONE other than the guardian (we sure as hell haven’t), so it’s not like you’re asking her to lie. You can blame your family and potential hurt feelings, if you want, but chances are your aunt is just as aware of her sister’s…tendencies as you guys are (with the history of “smaller slights” you’ve mentioned) and has learned to keep her mouth shut about sensitive  topics.  And if your  husband’s aunt is trustworthy enough to raise your child, I think you can have an honest, grown-up discussion with her over your fears and concerns about this decision being viewed as politically charged, and requesting that you keep it private and to yourselves and all that.

Remember, too, that guardianship arrangements can actually be kind of fluid. You may very well decide that someone else is a better candidate in a few years. Illness or financial disaster or a move to China might suddenly disqualify the guardian you originally choose. You might bypass family and ask your future hypothetical very best friends in the world with a child your son’s age. Obviously, your MIL will NEVER be your choice, but there are just SO MANY REASONS here to stop obsessing about this. You do need to talk to your aunt about your decision, but you do NOT ever need to disclose that decision to anyone, or justify your reasons for reaching it.

About the author

Amalah

http://www.amalah.com
Amalah is a pseudonym of Amy Corbett Storch. She is the author of the Advice Smackdown and Bounce Back. You can follow Amy's daily mothering adventures at Amalah. Also, it's pronounced AIM-ah-lah.

If there is a question you would like answered on the Advice Smackdown, please submit it to amyadvice@gmail.com.

Amy also documented her second pregnancy (with Ezra) in our wildly popular Weekly Pregnancy Calendar, Zero to Forty.

Amy is mother to rising first-grader Noah, preschooler Ezra, and toddler Ike.


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23 Responses to “The Guardianship Jungle”

  1. Sara M Jul 12 at 1:16 pm Reply Reply

    We’ve actually been asked about this topic a lot but I think it is because both hubsand and I have siblings with kids around the same age so we are all going through the steps to determine who guardians will be. However, we still haven’t chosen one as it sets off a heated argument between us as we each feel our kids should go to different people: for him it’s his brother and his family and for me it’s my sister and her family. So we avoid the topic, which is not the right thing to do, but that’s where we’re at right now.

  2. Alisha Jul 12 at 1:17 pm Reply Reply

    I would love to see a full article on how to approach selecting a guardian and talking to that person and to other people who thought they were in the running about the whole thing. My husband and I both agreed to ask certain friends to be our child’s legal guardian–for reasons similar to the letter-writer’s, none of our blood relatives are particularly suited. We just can’t figure out even where to begin that conversation just yet (particularly since our child is still in utero–do we have to do this before the baby is born?). I would love some advice…even though the right advice is probably, “Just get it over with.”

  3. Chaya Jul 12 at 1:59 pm Reply Reply

    I’m with Sara M. in that it has come up in converation, mostly with friends and sibling in a commiserating kind of way.  We also haven’t figured out what to do (and we have 3 kids, a 4th on the way!), because my husband and I can’t seem to agree what to do.  We are pretty good at problem-solving\working together, but on this one we are just plain stuck.
    But, I will say I think Amalah’s advice sounds right, it shouldn’t be such a big deal to ask the aunt not to bring it up.

  4. Liz Jul 12 at 2:43 pm Reply Reply

    When my daughter was born, my husband and I had a will made naming his sister as the guardian. At the time we were all pretty close and although she’s a single mom, her son is 5 years older than my daughter and we felt it would be a good place if the worst did happen. We asked her, she agreed.

    Cut to 2 years later with baby # 2 on the way. Lots of negative things had happened in my SIL’s life so without telling her, we took her out of our will as guardian to our children. We don’t really have anyone else we feel we can ask, so our parents are in charge of what to do, based on what is best for the kids at that time. Not my first choice but we don’t see any other alternative at this time.

    We didn’t ever say anything to my SIL about taking her out of the will; she figured it out on her own (as a result of her careless actions) and we have never spoken of it.

    All this to say that yes, definitely ask the aunt if she will be the guardian. But as Amy said, it is no one’s business that this conversation has taken place or the decision that is reached. If the worst does happen, then your husband’s mother can be angry all she wants but what is done is done. Ultimately what matters is the care and safety of your son and you do need to have it written down in a formal document. It is a delicate situation in every way. Good luck.

  5. saramalso Jul 12 at 3:11 pm Reply Reply

    Good for you for having this conversation – it can be a doozy! And to some extent I do understand your level of preemptive worry; once you start talking about it, you want it to get settled! We’ve had this conversation recently in regards to our one year old. We still haven’t “officially” settled it, but a big thing to remember is that you don’t get to “leave your kid(s) to someone” like you would a necklace or something. Children aren’t considered possessions. So while anything you have in writing would be considered in court, the judge would look at the family, emotional and financial situations of anyone making a claim to your child(ren).**

    I agree with Amy that you should talk with your husband’s aunt. If she agrees, then talk about whether she is comfortable with the conversation remaining private. Put your wishes and logic as clearly as possible in your will and then…leave it at that. If your MIL brings it up at some point deal with it honestly then.

    **I got the idea from research that this was pretty universal, but it may vary by state.

  6. Marni Jul 12 at 3:22 pm Reply Reply

    Yes you should ask your Aunt, no you shouldn’t tell your MIL. You should consider documenting in the Will (or some connected document) that you don’t want your MIL to be the guardian (and maybe why). BECAUSE – if she gets ticked and decides to fight the will, it will be easier if it was explicitly in writing. Plus, as a friend of mine pointed out, even if she’s offended that you specifically identified her as someone you don’t want raising your child, you won’t be there to hear her complaining. :-)

  7. Mary Ann Jul 12 at 3:40 pm Reply Reply

    So, I always knew what the chain of potential custody would be for me and my sister if our mom died, and I knew which of my cousins would become even more like siblings to me if their parents died. My aunts discuss this sort of thing about their grandchildren all the time — I know who the guardians of most of my cousins’ children would be. So if/when I have kids, I know at the very least, my sister would ask me if the kid is her responsibility if my husband and I die. Probably, my aunts and uncles and maybe even a cousin or two would, at the very least, want me to confirm that these things have been taken care of. We might just be a weird family with a few too many lawyers in it though.

  8. christina Jul 12 at 5:17 pm Reply Reply

    Definitely ask the aunt; don’t tell the abusive MIL; and try not to fret too much. And I wouldn’t wait on this. No sense letting it hang over your head (and it will — as it should!). Also, this has been a HEATED issue in my family and has lead to major hurt feelings in the past when it came out that two beloved nephews would go to non-relative friends of the family because the parents couldn’t choose between two well-suited siblings. It was upsetting for many, but ultimately it worked out for the best, and they changed their guardianship plans the next year and designated one sister over the other (after both swore not to “be mad” and made peace with the decision).

  9. Eris Jul 12 at 7:55 pm Reply Reply

    Being the child of a parent exactly like the mom in this letter I will say that, without a doubt, even if Amy wonders why the mom would freak out she WILL. Any perceived slight, any chance to raise hell and get attention, ANYTHING is an opportunity to be awful and manipulative so I totally, completely, absolutely understand where this couple is coming from.

    Ask the Aunt so she has a heads up, it is the right thing to do, but request that she not share with anyone else. If it does get out I am so very sorry, there is little logic you can use on irrational, selfish, manipulative people so you would just have to ride out the storm.

    As awful as being at the mercy of someone like that is the only condolence I have is that you are absolutely not responsible for your mother in law’s response and it isn’t your duty to always “protect” her. She is soley responsible for her emotions and reactions and in the long run if the tenuous relationship she has with her son is damaged it isn’t the fault of him or the wife, it was her choice. Years of therapy helped me learn this :)

  10. Jenny Jul 12 at 10:31 pm Reply Reply

    This is obviously a very personal, emotional decision for all parents, but like many parenting decisions, it is one that must be largely based on logic. In general, grandparents are old, and many have health issues. Any attorney will tell you that it is best to pick a guardian that is young enough to live long enough to raise your child into adulthood. Many people are tempted to choose their own parents as guardians, but they are less likely to outlive you than are persons your own age or younger. So if your MIL does find out she is not named the guardian, you may find that a logical explanation may be helpful in dealing with her disappointment (although, maybe not!).

  11. Anne Jul 13 at 9:47 am Reply Reply

    Like B.K. and Eris, my Mom is the same way. I love my mom and want her to be a part of my son’s life, however in no way would I trust her to take my child if my husband I were to die. If she were to know that I felt that way, it would be a immediate reaction, much like what was described as above. I know it is hard for other people to realize there are moms out there that would react that way, but believe I am living proof there are. I feel for this reader and hands-down agree with Eris, tell the Aunt (who should understand how her sister is) and ask her to keep this confidential. My brother and his wife will be taking my son if my husband and I were to pass away. Only they know this – and of course the lawyer who helped us with the will. My mom would probably not speak to us and leave immature text messages (her mode of communication GRR) for what would seem like eternity. Hang in there, and Yes all the non-believers, there are people out there who would certainly make an issue out of this and even smaller things.

  12. Susan Jul 13 at 12:36 pm Reply Reply

    I agree with Amy’s advice — you owe it to your husband’s aunt to give her notice of your intentions, but I wouldn’t worry too much about his mother finding out. I’m assuming the aunt knows the fuss it would create if it got out, so she would also have an interest in keeping it quite. And as Amy said, this is not generally a topic of conversation that comes up frequently. The only conversation we’ve ever had with family on the topic was when we talked to the couple we wanted as guardians. No one else has ever asked, nor have we ever asked any of the 7 collective siblings in both families.

  13. Julie Jul 13 at 1:29 pm Reply Reply

    So, a few months back we had a lawyer come to our mom’s group and give an intro lesson on setting up wills – what to consider, why you should, some of the basic options, etc.

    Her advice on gaurdianship was to choose at least three different people, in order of preference, put them in the will, and not ask them about it. They have the right to refuse, and if so it would pass to the next person on the list, etc.

    I personally would feel more comfortable asking the people I’m considering, but on the other hand the nice thing about not asking is that if 5 years later (say in your case when the siblings are older and more responsible, or the aunt is getting older and doesn’t have the endurance) you change your mind, you can just quietly amend the will without it being a huge “what do you mean I’m not the gaurdian any more” conversation.

    You could always split the difference by having a casual conversation with the aunt along the lines of “we’re considering who we want as our possible gaurdians, would you be willing if we decide to go that route?” and if she says yes, just quietly establish her as such without ever making an official announcement about it.

  14. Melissa C Jul 13 at 1:33 pm Reply Reply

    I had a similar situation. My sister is not in a position financially to care for my child. My Aunt and Uncle are. I spoke with them and they agreed to do it. I told my Mother, who understood the situation with my sister, and who agreed to do the explaining in the event of our untimely demise. The end. I thought there was no need to upset or hurt anyone’s feelings for no reason.

  15. Julie Jul 13 at 1:49 pm Reply Reply

    Oh, and one more useful tip from the lawyer. You and your husband do not set up a joint will. You each have individual wills. Usually they are mirrors of each other, but not always. So to the commenters who can’t agree with their spouses on who should be guardian – you can just set up individual wills with your own individual preferences. In the unlikely event that you die at the same time, the court will decide who technically died first and use that as a guideline for custody. In the more likely event that one parent dies first and the other later, it’s likely the will would be re-written to reflect the surviving parent’s preference anyway. Better to have two seperate wills and get it done with than to let the division keep you from setting up the will.

    (Says the woman who is seriously overdue to write hers.)

  16. The gold digger Jul 13 at 2:33 pm Reply Reply

    My sister is not in a position financially to care for my child.

    You need to get life insurance. Seriously. It is not fair to ask someone else to raise your child and to assume all the financial responsibility as well. My sister is considering adopting and asked if my husband and I would be guardians. We agreed, but I will insist that she get a good life insurance policy with her child as the beneficiary and my husband and me as trustees. Raising a child is not cheap.

    The rest of you without designated guardians. Do it. Do you want the courts deciding who gets your kids? And yes, you have to ask the person first. I would be more than ticked if I found myself in the situation of being named guardian without my knowledge.

    As far as the in-laws: They do not have to know. My husband’s parents were (as usual) talking trash about my sister in law. Specifically, they were complaining about her weight. I asked why it was any of their business. “Because if she dies young, we have to raise those [three] kids.”

    What BS. I asked my SIL about it and she said that not even over her dead body would the outlaws have her kids and that years ago, she named her brother as guardian.

  17. Melissa C Jul 13 at 7:01 pm Reply Reply

    We have life insurance. Thanks for the input though.

  18. Melissa C Jul 13 at 7:03 pm Reply Reply

    We do have life insurance. I guess the situation is a little more complicated than that – there are details I don’t need to share. The point is that we chose the guardian we thought would be best for our child, regardless of whose feelings were hurt, and we didn’t feel it was necessary to notify the people who were not selected.

  19. Sharon Jul 14 at 11:01 am Reply Reply

    As an estate planning attorney, I second the advice that Julie listed from the attorney who visited her mom’s group. The only other things I would add are (1) put a provision in your Will indicating that you specifically direct the guardian to maintain consistent contact with all family members, for example see to it that your child spends certain holidays with a certain side of the family – in the way we all do now: Xmas with one side, Easter with the other, or what have you – so that all those not chosen as guardian can see that your intention is not to keep them out of your child’s life; and (2) to write a letter to the MIL, to be kept with the original of your Will (usually the attorney holds on to the original) and delivered after your death, explaining why you’ve made your choice as guardian – the closness in age of the Aunt’s children, the suitability of her lifestyle and residence to raising children, the fact that you don’t want to burden with the responsibilty so that she can just enjoy being a grandmother in the same way she does now, etc. (You obviously don’t have to spell out ALL your reasons…) These 2 steps will ease the way for the Aunt/guardian after you are gone, which will keep your son’s life as drama-free as possible too.
    And Good Luck!

  20. elz Jul 14 at 1:16 pm Reply Reply

    As an attorney and a mom, I can not believe that people would not tell someone that they have selected them to RAISE their child if the unthinkable happens! You definitely need to at least ask the aunt if she would be willing to raise your child. My brother and his wife have never told anyone else in our family that they are our designated Guardians. My husband and I have talked through the chain of what-ifs and have listed 3 couples in our wills. We have discussed it with them fully and I advise them every time we leave on a trip. Hey, you never know. I completely agree with an earlier commenter, life insurance is a must-in at least enough to purchase the house the child/children are living in plus one year expenses.

    Good luck!

  21. The gold digger Jul 14 at 5:30 pm Reply Reply

    Sorry, Melissa. No offense.

    life insurance is a must-in at least enough to purchase the house the child/children are living in plus one year expenses.

    The movie “Raising Helen” was so stupid in so many ways. The premise is that Helen (Kate Hudson) is surprised to find herself the guardian of her sister’s 3 kids when the parents die in a car wreck. Yes. They didn’t tell her. Or ask her.

    Then they have to move out of the kids’ house because Helen can’t afford it.

    I was screaming at the screen, “Life insurance! Life insurance!”

  22. Amy Jul 21 at 11:43 pm Reply Reply

    Please be careful calling people stupid for not having Life Insurance. My husband and I are Grad Students and assumed, quite naturally, that we were not in any position to afford life insurance, as we are driving an (no lectures on safety, please, the car is fine) eighteen year old car and can only afford Berkeley’s student housing if we add loans onto fellowships.

    My brother recently went through a drastic career change and is a financial planner. He has pulled all of his siblings aside at different times and gotten us squared away with minimum life insurance (about $10/month for my husband and $15 a month for me – I’m older and fatter!).

    Please understand that $25 a month for us is a maximum contribution and covers nothing like the cost of a house and our daughter’s living expenses for a year.

    Cut us all a bit of slack. Helpful comments about the affordability of at least some life insurance is nice. Judging comments about our stupidity is not.

  23. EIleen Jul 22 at 8:52 pm Reply Reply

    Julie, thank you for the suggestion! The biggest argument my husband and I ever had was over who to choose as guardian for our kids (he wanted his sister, I wanted mine, neither of us was willing to budge, so a will has never been written). Now with another baby on the way, we just really need to bite the bullet and do it. But if we can each just state our own preference in our own wills, we’ll at least HAVE wills, which is a step ahead of where we are now. I also love Sharon’s advice about provision of “consistent contact” with all family members. Since our families live in two different states, this could help ease both our minds that neither family (either intentionally or inadvertantly) will be cut out of our children’s lives.

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