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Child Guardianship

The Guardianship Jungle

By Amalah

Dear Amy,

I 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.

Advice Smackdown ArchivesWhoa. 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.

Amalah
About the Author

Amy Corbett Storch

Amalah

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 Ama...

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 [email protected].

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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Sara M
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Sara M

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… Read more »

Alisha
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Alisha

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… Read more »

Chaya
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Chaya

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.

Liz
Guest

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… Read more »

saramalso
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saramalso

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… Read more »

Marni
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Marni

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. 🙂

Mary Ann
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Mary Ann

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… Read more »

christina
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christina

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… Read more »

Eris
Guest

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… Read more »

Jenny
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Jenny

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… Read more »

Anne
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Anne

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… Read more »

Susan
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Susan

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,… Read more »

Julie
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Julie

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… Read more »

Melissa C
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Melissa C

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.

Julie
Guest
Julie

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… Read more »

The gold digger
Guest

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… Read more »

Melissa C
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Melissa C

We have life insurance. Thanks for the input though.

Melissa C
Guest
Melissa C

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.

Sharon
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Sharon

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… Read more »

elz
Guest

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… Read more »

The gold digger
Guest

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!”

Amy
Guest
Amy

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… Read more »

EIleen
Guest
EIleen

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… Read more »