Guarding your child's future
By Laura Casey
McClatchy-Tribune News Service
It's a scary topic to even think about, but one Janet Amador of Moraga, Calif., knew she had to face head on this year. Amador had to name someone as guardian for her two young sons should something terrible happen to her.
Earlier this year, Amador's husband died unexpectedly. Widowed, and with a settlement from life insurance, Amador set up a trust and guardianship for her sons, ages 9 and 11.
If something happens to her, she says, she wants to know that her sons will live with someone who will love the boys as she and her husband did.
"I do a bit of travel for my position at work, and that kind of put it into another thought pattern," she says. "If you are on an airplane or somewhere else, you have no control. Not that you have control anyway."
It's a difficult decision to make. Call it morbid or gloomy, but guardianship is something everyone with children should think about and act upon, says John D. Hodson, a Vacaville, Calif.-based attorney and vice chair of the family law section of the California State Bar Association. A legal guardian is someone who will take care of the children should both the biological mother and father die or become unable to take on the responsibility due to substance abuse or disability.
"It's your last gasp," Hodson says. "If you don't name a guardian, the court is going to have to, and the court may or may not do what you'd like. A judge would certainly try to act in your best interest, but he or she is acting at a real deficit. You, as a parent, are in a much better position to decide who the guardian of your children will be."
A named godparent is not a legal guardian, lawyers say.
"And, sadly, it's not rare. Parents die all the time, leaving children behind," Hodson says. "It's not the natural order of things, but it happens."
Many parental deaths lead to family squabbles if a guardian is not named, Hodson says. On the other hand, if no one is named a guardian in a will or trust, and nobody steps up to claim the children, they will go to foster care. When pop star Michael Jackson died, he had a will that named his mother as guardian of his children — but many families do not have such a will.
Amador's attorney, David J. Elefant of Walnut Creek, Calif., started the conversation about naming guardians for her children when she came into his office to set up a living trust. Dedicating someone to take care of her boys was the first thing she needed to take care of, the attorney told her.
"This is often one of the most difficult questions my clients have to regard," Elefant says. "There are so many issues that come into it. But it's easy to convince young parents why it is so important — so they can make a decision instead of a judge making a decision."
Some of the major issues parents have to consider when choosing a guardian, Elefant says, include family values, religion, race and culture, possible relocation, the ability of the guardian to handle more children if they already have their own, the age of the guardian and the child's wants and needs. Also, Elefant says, the named guardian has to agree to take on the responsibility.
Ultimately, the court still has the final say, but judges generally presume that the parents have chosen a guardian by considering what is in the best interest of their children.
As she mulled the decision, Amador ruled out some possible guardians straight off. Her sister, 13 years Amador's senior, had already raised her own children, and Amador didn't want to put another burden of two young boys on her, she says. Amador's brother, an attorney who lives in Idaho, doesn't know her children well, and the relocation would have been an extra hardship on the boys after losing both parents.
So Amador decided that a couple she used to live with in a townhouse complex who became great friends of the family should be her sons' guardians.
"They know my sons. They know their idiosyncrasies, and they know my values," she says. "They know which one likes to play video games and which one likes to play basketball. I jokingly call them the fairy godparents because they have been so supportive and so involved in the boys' lives."
As for her children's wishes, Amador says she did not discuss guardianship with her boys, though she says they likely would not have it any other way, either.
For Gloria Zaionz of Pleasanton, the most important consideration for choosing a guardian for her two boys was finding a guardian that would raise them with similar values she and her husband have. The couple also want the boys to go to a home where the guardians value education and would raise them with the same ideas about discipline.
"We really want to keep our kids in this area and still have the same group of friends and the same routine," she says.
There were plenty of people for the Zaionzes to choose from: his parents, her parents, brothers and sisters and godparents.
But the family named friends as guardians of their children, a couple who don't have children of their own, but who love the boys as family.
"They absolutely adore our children," Gloria Zaionz says.
After choosing a guardian, experts recommend you inform your choice about the decision.
After deciding on her friends as guardians for her children, Amador asked for their permission. She called the couple and, on speakerphone, asked them both about their thoughts on the matter.
"There was no waiting period," she says. "They both said, 'Absolutely. Of course.' "