Establishing a Preferred Guardian for Your Child
Q: Dear Kate,
My partner and I have been in our relationship for more than 15 years. We have two sons: an 18-year-old who my partner had before we met and who has lived with us since 1988, and a 6-year-old who was conceived through anonymous donor insemination from a California cyrobank.
We are concerned about where the 6-year-old will live if we both die. His brother is more than willing to take care of him and that is our wish as well. But we fear that my parents will challenge our decision about who should raise our son. I have discussed this with my mother, and her response to me is, "He will live with me and there is nothing you can do about it since you will be gone."
What can we do to ensure that this does not happen?
Thank you for your time.
Renee
A: Dear Renee,
Fortunately, for the issue of guardianship/custody, simple estate planning documents can virtually assure that your wishes will be followed.
I suggest a will or trust instrument that contains a nomination of guardian naming your choice, whether your older son or someone else. You can download very basic estate planning forms, which include a separate nomination of guardian form from the National Center for Lesbian Rights.
Whichever option you pursue, it would be helpful for you to include some language that makes it clear that your choice was considered and intentional.
For example:
"We have chosen (name of guardian) to be the guardian of (name of child) because of his/her close and meaningful relationship with (name of child). It is important to us that our wishes be respected even though there may be other family members who would wish to be the guardian of (name of child)."
Some kind of language like this makes it very clear that your failure to chose your mother was not an oversight or a mistake. I also would suggest that you continue to remind your mother of your decision and even provide her, or other family members who might raise problems, with a copy of the documents naming your older son as the guardian.
I am unaware of a disgruntled family member having the appointment of a designated guardian overturned. While your message makes clear that you understand the importance of this document, it is worth noting that if one does not have a nomination of guardian, a court will generally appoint the closest living family member. From your question, I don't know if that would be the child's grandmother or brother; if it's the former, it is essential that you have one of these forms.
Sincerely,
Kathryn Kendell
Kendell is executive director of the National Center for Lesbian Rights.
Sept. 12, 2001