Choosing a guardian can be a couple's hardest task

The Associated PressAugust 6, 2009 

— The husband and wife went back and forth, back and forth, but they couldn't agree on who should take care of their young kids if, heaven forbid, something happened to both of them.

And so they made an unusual agreement, according to their lawyer: If the children were orphaned in an even-numbered year, the guardian would be the wife's choice, from her family. And if it happened in an odd-numbered year, it would be the husband's choice, from his side.

Such a compromise is certainly odd, but it shows what an emotionally fraught process it is to choose a legal guardian for one's children.

It's a procedure that's getting renewed attention these days because of the battle over Michael Jackson's children. But it's something with which ordinary parents struggle.

In fact, lawyers say, it's so difficult that many parents delay or avoid doing their wills altogether, essentially leaving the decision to the courts.

"As parents, we do everything we can to provide the best for our children," says Mary O'Reilly, a New York trusts and estates lawyer who reluctantly accepted the unusual odd-year-even-year deal because it was the only way to get the parents to agree.

"Yet when our children are most vulnerable and need us the most -- that is, when we are no longer here to care for them -- parents don't always ensure that their children are taken care of and provided for."

Ideally, lawyers say, such decisions should be made before the child is born. Often, though, it doesn't happen for months or indeed years after the birth.

"This is such a tough issue that it prevents some couples from coming in to do their wills," says Michele Kahn, a New York lawyer. "Working out the money is far easier than this."

Jackson left three children behind. Despite the obviously unique complications of the pop star's case, he was ahead of many couples in one respect: He had a will.

That 2002 document names the entertainer's mother, 79-year-old Katherine Jackson, as guardian, and lawyers announced last week that she had reached a custody deal with Deborah Rowe, Jackson's ex-wife and the biological mother of the two older children. Katherine Jackson will retain custody, and Rowe will have visitation rights.

A different aspect of the will raised some eyebrows when it was announced: Singer Diana Ross was named as a backup guardian. Lawyers say it's not exactly rare to name friends, but most often people name family members. Kahn wonders why Jackson didn't pick any of his siblings, for example.

Review your choice

But whomever they name, the first problem most couples encounter is simply imagining leaving their children behind.

"Nobody likes to think about not being around for their kids. Nobody is as good as you," says Anita M. Ventrelli, a Chicago divorce lawyer and chairwoman of the Family Law section of the American Bar Association.

Still, parents have to choose. How do they do it? Ventrelli, 45, faced that problem four years ago when she was about to give birth to a son. She and her husband talked and discovered that, thankfully, they were on the same page. "The biggest surprise was that we ended up agreeing," she said. They took care of all the documents during her ninth month of pregnancy.

Ventrelli stresses that whatever choice you make, you review it frequently. After all, people pop in and out of one's life.

"Some people pick godparents who later drop out of the picture," Ventrelli says. "Once a year, people should review these things, just as they review their car insurance and their investments."

Another circumstance that might warrant making changes: Your guardian moves across the country, gets divorced or marries someone you don't like.

"People generally pick a couple," says Maria Modica-Snow, a lawyer in Croton-on-Hudson, N.Y. "But then they need to ask: What if they get divorced or one dies? If Jack dies, do you still want Jill? If Jill dies, do you still want Jack?"

Or what if Jill is single but then a Jack comes into the picture? Nancy Pokojny of Floral Park, N.Y., and her husband, Scott, named their guardian when they had the first of their three children, now 5 (the others are 3 and 2). Pokojny is the sister of O'Reilly, the Manhattan lawyer, and she would have liked to name her sister, whom she calls her best friend, as guardian. But O'Reilly was single at the time, and they thought it might be a burden to her. The couple chose Scott's relatives.

O'Reilly later got married and had a child, so not long ago the couple decided it was time to make her guardian. O'Reilly lives just a few blocks away, and her son plays with Pokojny's children all the time; she's also expecting a second child.

"My husband and I did not want to disrupt and traumatize our children's lives any more than the trauma of losing their parents would," Pokojny says. "My husband's sister and her husband live about two hours away from us by car. So our children would have to change schools, lose their friends and have to make new friends, all at a time of unbelievable sadness and trauma."

Start the conversation

But how do you even start the conversation with a potential guardian? Might it not be best to just write them into the will and have them learn about their designation in the unlikely event of your death?

That approach doesn't sit well with most lawyers, or with Pokojny, a securities lawyer, who favors a more direct conversation. "Listen, we need to pick a guardian, do you mind?" she recalls saying. "Hopefully, it will never happen."

Ventrelli, the Chicago lawyer, says it's a bad idea not to warn the designated guardian beforehand. "I've seen cases where people say, 'I'd rather not,' " she says.

Also important: If you want members of the other side of the family, as opposed to the guardian's, to have access to the children, write that into your will so that there's no question about your intent.

Whomever you choose as guardian, the court has the final say. But courts generally presume that the parents' choice is in the child's best interest unless there is an obvious issue of incompetence.

The most important thing, O'Reilly says, is to appoint a guardian, even if you don't completely agree on the choice.

"Designating a guardian that at least ONE of you feels is the appropriate person to care for your children is better than leaving it up to a judge," she says. The decision will probably never take effect: Most children have at least one parent living when they turn 18.)

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