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Choosing a guardian in the even of death...

post #1 of 9
Thread Starter 

So my kids' "godparents" have always been my brother and sister in law..however I'm unsure now. They are the kind of people who love my kids but don't want kids of their own. They think their dogs are just like kids and I am concerned that they would give their dogs preference to my kids. They are young professionals and I'm just worried that they're not mature enough.

My parents are young and fit at 50 years old. I'm considering making them primary custody holders if they're young and able-bodied enough to handle the kids and if not my brother and sister in law. I would simply refuse to die if my only choice was to give their dad's side of the family custody.

post #2 of 9
My parents had poor health even at 55, so they were not a choice for me. It is great that your parents are but you should realize they may not be healthy long enough to finish raising your kids to young adulthood. Just do the math. If your youngest is less than 5.. they still may not be the best bet once you add the 15 years or so it will take to get your kids self sufficient. Or be willing to re-do your will should the need arise.

We choose friends of the family that were older than us but not as old as my parents and did get along with our extended family so that our children would know their cousins and other kin as they grew.

I'm so glad you are being a real adult, though! So many parents try to skip this step because its so hard to do but I think so necessary that you protect your child even if you are no longer living. I forget her name .. but there is one MDC mom that grew up in foster care, split from her siblings because her parents didn't name a guardian. She is pretty bitter about the experience to say the least.
post #3 of 9
50 is perfectly young. I am 46, and my kids are 6 and 9. I have lots of friends who are 50 with young children (bio, foster, and adopted.) I wouldn't let that stop me from naming them as guardians.

I have no clue where my kids would go. My parents, and step-parents, are all in their 70s. And I really don't have friends valise enough to ask. It is a huge worry.
post #4 of 9
Originally Posted by Polliwog View Post

50 is perfectly young.

It may seem so now but my FIL dropped dead suddenly at 70. If he had been my children's guardian they still would have been 17 and 15 when he died.. making them orphans again. Starting your young adult life is hard enough without burying a guardian. And he had been in great shape.. biking, lifting weights and hiking.

Do some soul searching and make some choices. Protect your kids!
post #5 of 9
Is the father alive? If yes, then that is who is extremely likely to get full custody should you die while the kids are minors. And there really isn't much you can do to stop that.
post #6 of 9
Originally Posted by Goodmom2008 View Post

Is the father alive? If yes, then that is who is extremely likely to get full custody should you die while the kids are minors. And there really isn't much you can do to stop that.


This is true.

However my lawyer advised me to find someone willing to FIGHT for custody; that immediately the children would be given to father, and then any bio-Grandparent if father is deceased, but that anyone (at least in Oregon) can file for custody, it would just become a custody battle at that point, and assuming that you have to really have issues with dad - it doesn't take much to be a "Fit" parent in some states.


I drew up a will with my sister as desired guardian. And I asked her with that intention, Only do this if you're willing to Battle him out. She also has all my notes/journals throughout our split and current life so she has all the background she would need to Fight for custody (which we'll update regularly).  So while she might not have a ton of her own information to bring to court, she has mine -- now whether or not they'd be admissible or if she'd have any shot at winning, who knows. But at least the intention is there. 

post #7 of 9
OP, any updates? Have you started collecting material to prove a case that your ex is not a fit parent?
post #8 of 9
Thread Starter 
Thanks everyone! I have set up an appt to get life insurance so my brother and sister in law will have the $$ to fight for custody if I die. Unfortunately not much is documented in regards to his crappy parenting. I have witnesses who have seen him treat my oldest kid roughly (pushed him down and made him cry, then tried to tell everyone it didnt just happen) but theyre all family..I have his two inpatient psyche ward stays and the fact that thearmy sayshes suppoaed to be on meds and he quit them without talking to a psyche. What else can I do? Can I put something in the parenting agreement?
post #9 of 9

If you can get those witnesses to write an affidavit and get it notarized now it would be a great thing to save in your files. It's best to not wait until they've forgotten the details of the situation. I'm not sure if "they're all family" means they're his family and you don't think they would speak badly about him, or if it means they're your family and you don't think the Court would believe the affidavit (the Court will consider the evidence. Sure, the Court might assume the potential for bias, but if a clear and consistent picture is painted by the affidavits it's good to submit anyway).


Put something in the parenting agreement. Hope that if, god forbid, something happens to you, he'll assume that he has to follow the parenting agreement. It's not enforceable, i.e. if he would have some awakening and decide he wants to be a full-time dad, the Court will not enforce the parenting agreement and automatically send the children to live with the person you've agreed upon. The reason is that you can't know now what will be in the children's best interest several years from now. OK, I agree if you believe him to be a terrible dad right now, that it is reasonable to assume that he'll still be a terrible dad in several years, but it's not always the case. For example, maybe the agreed-upon guardian decides to take up a new, dangerous, lifestyle that makes them unfit to parent. I don't doubt your choices, but it's just to say that circumstances change in ways we can't necessarily predict. It's the same for people who try to use a premarital agreement ("prenup") to decide the fate of their hypothetical children in the event of a hypothetical divorce--the Court won't enforce the agreement on real children subject to a real divorce. But this doesn't necessarily mean he won't just assume he has to follow it because it's in the agreement so I think it's worth a try. If he's not really interested in being a full-time dad anyway, I think giving him a comfortable "out" is a good idea, regardless.


And then, keep their godparents (B+SIL), or whomever else you choose as a guardian, incredibly involved in your children's lives. Uprooting children from their lives (school, friends, activities/extracurriculars, church, family, ...) isn't desirable (to you, to the children, or to the Court) so having them established with your desired guardian is good argument to have on their side. It wouldn't necessarily override going to live with their dad by itself, but it could tip the scales if his ability to parent is otherwise questioned.


I agree that you should verbally confirm with them they are willing to fight for custody. It might also be a good idea to work with a lawyer to set up a trust so that you can prescribe how the money will be spent, particularly if you think they might eventually see the dollars and decide to spend it on something other than getting custody of the children. I would also cover your bases and elect an alternative guardian in the event something happens to B+SIL. Have you considered what you want to happen in the event they separate? Would it change your wishes? If so, that needs to be documented as well so the money goes where it should. Don't leave the money directly to the children without a trust, or they won't be able to access the money until 18-21 years of age (depending on the laws in your state).

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