When it comes right down to it, anyone can challenge just about anything legally, and the ultimate decision lies with the judge who is supposed to be an impartial representative for the best interests of your children.
To good news is that, while someone may contest your named guardians and request guardianship, you do have recourse, if you, of course, take action NOW.
The option that I recommend is that, if you name guardians for your children, name alternate guardians in order of preference. In addition to this strong measure, the best next step is to file confidential legal documents as to who you do NOT want to have guardianship. List the reasons why you don’t feel it would be in your children’s best interests to be their care.
In the final analysis, as I said, the court may be forced to make tough decisions if guardianship is challenged. But your having taken the proper steps before this ever comes before a judge means you have the best chances that your wishes will be carried out.
Imagine that you are the judge:
Today, you are hearing a case for two children who have lost both parents recently. The parents had named guardians for their children and counted on their wishes being carried out and their children would be raised by the wife’s youngest sister. It never dawned on the parents that the husband’s aunt would contest their choice and file for guardianship, asking the court to ignore parental wishes and assign guardianship to her and her husband.
You are saddened by the entire situation but knowing you have a duty to represent the children’s best interests in the parents’ absence, you silently ask them to forgive you for the decision you feel compelled to make: Deny their wishes and grant guardianship to the aunt.
In court, you mentally review the reasons why you must do this:
- Aunt Bettye is in her late 30’s, well off financially, has older children (experienced mom), is involved in school and sports activities, a volunteer for many things, married to a successful physician well respected in the community, and active members of a large, Protestant congregation and the list goes on.
- Sister Suzette is single, never been married or had children, in her late twenties, just starting a career, loves dancing, roller skating, traveling and appears very entrenched in “the single life.” While she is a law abiding citizen with no implications of glaring inappropriate-for-parenting qualities, she just appears too young, too un-family oriented, and too risky to favor for guardianship of two children who need more than anything to have a stable, loving home where they can recover and get on with life in the best environment possible.
During session, after hearing both sides for both petitioners for guardianship, one attorney approaches the bench and hands you a document.
After you’ve had time to review it, the gavel comes down with your decision: The parents’ wishes are upheld, and Suzette is named permanent custodian of the children and, unfortunately, Aunt Bettye’s request is denied.
What changed your mind?
A private, confidential document that the parents prepared before their deaths addressed any concerns you may have had. This document would never have been reviewed or made public had Aunt Bettye not petitioned for guardianship of your children. But she had, and it was.
It named all the reasons that the parents, who didn’t imagine Bettye would want guardianship, but just in case, they explained why they did not want her to be given guardianship and why they did want Suzette to raise their children.
- Aunt Bettye appeared to be the perfect mom, but the parents realized that she was emotionally unavailable to her children and not demonstrably loving. She loved by doing things; not by hugging, encouraging, being a shoulder or even just listening… all the things they wanted their children NOT to be without. Aunt Bettye’s husband was rarely home and when he was, their “cold” marriage was evident and left others feeling badly for them both. Aunt Bettye’s religion was Protestant; the children were being raised in the Jewish faith. Aunt Bettye was also given to bouts of depression that made home life and family relationships even further strained. Aunt Bettye’s relationship with the children was only superficial. She’d never shown an interest in their activities or spending appreciable, quality time with them to build the relationship they’d had with Suzette since the day they were born.
- Suzette had spent hours with the children, taking them with her on day trips, baseball games, birthday parties, movies and roller skating. She called frequently just to say hello and was always there when she was needed. She was emotionally stable and not given to unhealthy relationships and surrounded herself with positive, health conscious friends who filled her life with fun and frequently educational invitations. She adored the children and would be the most suitable guardian to provide the children all the things the parents want but can no longer provide for the kids. In addition to all these things, Suzette was also Jewish, which was important to the parents that the children continue in this faith and not be torn or confused by a different religious upbringing.
Had the parents not taken the time and had the forethought to ensure that Aunt Bettye did NOT get custody in the unlikely event that she challenged their choice, you would have been forced to make the best decision based on what looked good on the surface or “on paper.”
But what a tragedy it could have been….