Article for May 2003: Be Careful Who
You Chose to Take Care of Your Kids.
This article is dedicated to one of my best friends
and a long time client who died last month. She was someone who always helped
others whenever she could. I think that she would be happy to know that even in
death, she continues to help others who may someday have to face what she
faced. This article is dedicated to her memory.
Approximately six
months ago she was diagnosed with terminal liver cancer, the details of which
are really unimportant. She had a sizable estate and two minor children that
needed to be taken care of. She had been a single mom for more than ten years.
During that time, she had continuously fought an extremely nasty and
expensive custody fight with her ex-husband. The details of which are
also unimportant.
She never shirked
away from any fight, yet for the first time in her life she truly felt
helpless. She knew there was no way out of her situation. She was going to
die and she certainly didn't want her husband taking care of her estate or her
children. She realized that she was going to have to find someone that
she could trust to take over after she was gone. She expected her
replacement to take over where she left off and continue the fight.
Death was a mere inconvenience. Right or wrong, her main focus has always
been her children and she fought like a mama bear to protect them.
She was friends
with a colleague at her job who she felt might be a trustworthy candidate
as trustee of her estate and guardian of her children. When she discussed
her choice with me, I had reservations because this person was not a family
member or even someone that she was intimately familiar with for many years. I
suggested that she consider other candidates such as her mother or father.
Since she was an
only child, there were no siblings that could step into the breach. Like many
families, her and her mom had experienced issues with each other over the years.
In her mind this ruled her mother out. Her father was also ill with
cancer, which ruled him out. She has a sister-in-law that was probably a
better choice, but she lived out of state and was considerably older than her. These factors ruled her out as well. This was not a good situation and to
make it worse, her illness prevented her from finalizing the paperwork
until the day before she died. By then her options had dwindled down to
practically zero.
When she picked
this person, she envisioned her older daughter, who would be 18 within a month,
applying to the court for a guardianship for her younger sister. While this
may sound like a Pollyanna solution, I can assure that it wasn't, She had given
considerable thought and came up with a workable plan. She had provided in her
will for her oldest
daughter to get a condo for the two of them to live in. She also envisioned
her friend working together with her daughters would make her vision a reality. She had no reason to believe that this wouldn't happen after her death.
She discussed her wishes with her friend, the children, her family and me.
We managed to get all the documents finished and signed only hours before
she finally died. It was like she hung on just long enough to get the paperwork done
before she died.
Without sounding
melodramatic, the body wasn't even cold, when all hell broke loose. It became
obvious to the girls and myself that the chosen guardian wasn't going to abide by my client's
wishes. What really bothered me was the way she went about it. She was totally
autocratic and mean spirited. It didn't matter what the documents said, she was
going to do things her way, come hell or high water. Unfortunately my client had
misjudged her choice for guardian completely.
Evidently the
candidate
totally disagreed with the manner in which my client was raising her children,
yet she never mentioned it.
She believed that my client was spoiling them and felt a little austerity and
depravation would do them good. She cut off their cell phones, cancelled their
auto insurance and listed the family residence for sale within a week of my
client's death. She intends to remake these young ladies in her vision of what
they should be and not my clients. All she has done is manage to further
fracture an already grieving family. I can assure you that this never
was my client's
vision. If she was still alive, she wouldn't permit this to go on for one minute.
But she's not alive and now this lunatic person who she thought was her friend is
running amok with the children she so dearly loved. But for the grace of God this
could be you.
How could this
happen to me you ask? The answer to this question is complex and has its roots
in the decision making process itself. Most of us are optimists by nature.
If we are given bad or life threatening news, we usually don't overreact and
make plans for our demise right away. We first listen to our doctors for words
of hope. These words are what feeds us and give us the will to struggle even in
the face of our own death. It's as if planning for what comes after we are gone
is admitting to ourselves that the situation is hopeless. This is the
wrong approach.
If we have a
terminal disease, we usually go through various stages from denial through to a
final acceptance of our fate. The problem comes when this end stage occurs so
late in our life that we no longer have the presence of mind or the time for
reflective thought and good decision making. In essence, we decide based
only on a hope that what we are doing will be the right thing.
The reality is
that since "we are all terminal", we should all have an emergency
plan in place and ready to go, especially if we have children. Without being
melodramatic, we should all remember that we are only one breath away from death
ourselves. So making an intelligent plan is not an admission of defeat it is a
loving gesture made when we are in full control of our facilities and well.
This is the right approach.
Everyone should
understand that no matter who you pick, no one is going to do the same type of
parenting of your children that you would. What you are looking for is
someone that you really know has the same values and beliefs systems that you
do. You need to really look at the entire picture of your candidate and not just
one aspect. This takes time to do and you don't have an unlimited supply of time. So if you
put off making this important decision until you are barely functioning, you are
not going to make a good decision.
Avoiding this
eleventh hour crisis is extremely important, which is another reason why I tend
to favor family
members as guardians of minors. For the most part family members are your
best choice and I will demonstrate why. If you consider using someone
outside your family, you had better have an extremely good reason for doing so.
In my opinion, good reasons would include having no living relatives, relatives who are
crack addicts or members of a terrorist organization. The point I am making is
that you have to have a really, really good reason and not just because you have
never gotten along with your mother or father. That is a really silly reason,
especially if you are dying.
The main reason
why some people consider an outsider is for this very reason. They have a history of family frictions
and unresolved issues left over from their childhood and they can't get
past it. This is a very big
emotional issue with many people. Some are so totally incapable of getting over the
past, that even when facing certain death they refuse to let it go. The logic
to this mind set is as follows. If their parents pissed them off so much, then that
automatically excludes them as candidates to raise their grandchildren. Because we know better and
we raised our children in a
better manner in spite of what our parents did to us.
We believe that
this is only due to our personal efforts and has nothing to do with our parents.
We conveniently forget that our parents raised us the way we are today
and, for the most part, we are satisfied with how we turned out. Yet we will not admit
this to ourselves for
some reason. Many of us
envied our friend's parents when we were growing up while looking down our
collective noses at our own parents. What we never realized is that others were
admiring our parents in the same manner. It's the old "grass is
greener" syndrome. I think that by the time we reach 30, most
of us realize how silly this whole thing is and we let go of the past and become
good friends with our parents.
Unfortunately some
of us never got there. The past is too hurtful and so we hold on to the hurt right
to the bitter end, rather than give it up. I don't think we mean to do so, we just can't help ourselves.
The reality is that, for good or bad, we wouldn't be the people we are today
without our families and parents. Our own parental influence is the very
crucible in which we were formed. The very things that we hate our parents
for giving us, is what make us strong and self reliant, and yet we hate
them for it. So naturally we feel that they aren't good
enough for our children. Instead of being raised by members of the very family
that produced us, we hope that a stranger would do a better job. With very few
exceptions, that idea is extremely foolish.
A stranger is
never a good first choice. Never ever. In nature, you rarely see an animal that will
take on an offspring of another animal. The only exceptions are among
some of the
big cats, and some of the more social animals that depend on family groups for
survival. In those cases, adoption makes sense for the group as a whole. But
even these animals wouldn't take on an offspring from another pride. In
fact if a new male lion takes over a pride, he will kill all of his
predecessors cubs so the females can go into estrus and he can pass along his
genes. After all why should he raise someone else's offspring? Do we
really believe that people are any different. While we are not wild animals, the
principals embodied in these illustrations should not be ignored.
The key to the
solution is the family unit. A family makes an investment in an offspring
and it is in the family's own interest to raise that child. While the
child has value to the family, the same is not always true of an stranger.
In the not too distant past, we all had extended families that looked out for
each other. Today many people are only out for themselves and they take
great pride in being independent. Of course these same people put their sick and
elderly parents into convalescent hospitals where they get inferior care and
financially bleed the family, instead of caring for these family members
themselves. They would view taking care of a siblings children as being
put upon, instead of protecting the family's investment. This is where we
lose all the wisdom and experience that an extended family confers on all its
members.
It's this
wrong headed thinking that gets us in trouble. If you have siblings that have
children at or near the ages of your kids, they would probably be a very good choice.
Especially if your mom and dad are elderly or deceased. If your mom and
dad are alive and willing to do it, they would be a very good choice also. Next would be
uncles, aunts, and adult cousins that are willing to act. Another good
source is your own adult children.
You may feel
uncomfortable thinking about using someone who you have had issues with over the
years. But, unless these family members pose a threat to the health, well-being
or safety of your children, they should be your first choice. Another
reason for this is that Court's prefer families. When you are facing
death, there is no time to stand on ceremony. You need help and the only way to
get it is to extend your hand to someone that you have known a very long time.
For those of you
still unconvinced let me ask you this. How many of you have asked friends of
yours to be your children's Godparents instead of family? Probably many of you
and both you and the Godparents gave no further thought about it after the
ceremony. How many of you would really want your choice for Godparents
raising your kids today? And for you Godparents, how many of you would really do
it? Probably not many.
For the
Godparents, consider this. You should be very careful when you accept this
position, because it really isn't an honor as much as a thankless job that you
may not totally even understand. Originally the purpose of Godparents was to
assure that the children received religious training in a certain
religion. It didn't envision raising the children should something happen to the
parents. This is an interpretation that developed later on by people who didn't
understand what they were doing. Today being a Godparent is largely
symbolic and I wouldn't count on them to solve your problem should you die. Most
Courts would not be influenced by your choices for Godparents in choosing a
guardian either.
Yet people go
through the ceremony and are content because we deceive ourselves into believing
that we have really accomplished something when we really haven't. Even if you
believe that you have the situation under control, you should revisit your plans
periodically. Things change and people change. Divorce, death, moving away
or simply changing your mind will play an important part and shouldn't be
ignored. A divorce may mean that we no longer have complete control over
what happens to our children. Which is why we should reexamine our choices
and see if they are still valid.
If you still cannot
accept this premise, then
understand this. If you have an ex-lover, sperm or egg donor,
ex-husband or wife that has legal rights to the children, chances are the court
will award the children to them. The fact that you hate them, ignore them,
pretend they don't exist or indulge yourself with other immature antics will
mean absolutely nothing to the Court. They will use the Best Interests standard
for awarding a guardian custody and most likely it will be the other parent.
That is the reality of the situation and I don't care what you think the
situation is or what your hairdresser said it was. This is the reality,
deal with it because your children will have to.
This means that if
your ex (fill in the blank) is a crack whore (or whatever) who is selling their
body for money, they may not get the children. Provided someone is willing to
make the effort to prevent them from doing so. Obviously this parent
would not be suitable, however it doesn't automatically mean that a family
member is going to come forward to save the kids from the bad guy. So don't
count on a white knight to come along and do it for you, because that
probably won't happen either. Sometimes the bad guys win, because no one was
there who cared.
You may be
thinking, well when is the stranger appropriate as a guardian? The answer is
really simple, when there is "no reasonable alternative." If no one
in the family is willing, able or capable of acting in the capacity of a
guardian or if their doing so would be detrimental to the best interest of
the children, then it is clearly appropriate. In fact strangers are commonly
used by the Children's Court for foster care and temporary placement.
While the preferred placement whenever possible is with family members, that is
not always possible. While the Court always tries to use good judgment and logic
in placement of children, they cannot deny a parent their legal right to their
children without good cause. This is the law.
For that reason my
client's plan that her oldest daughter would get guardianship of her youngest
sister probably wouldn't have worked. It wasn't impossible, just very difficult.
Given the efforts of the current guardian to torpedo the plan, it has
absolutely no chance whatsoever. Instead, she intends to
petition the Court for a guardianship over both girls. I also doubt that effort
will be successful for the same reason. If she wastes estate assets or
continues to act in an arbitrary or capricious manner, the minors and/or their
father could petition the Court to void the trust, or remove her as trustee. He
may even request that he be appointed guardian over their finances. Which, if
granted, would mean that everything that my client didn't want to happen
would come to pass. There is a lesson to be learned here.
You are probably
wondering, what went wrong, I just don't get it? As I said in the
beginning, it's the process that is flawed. She picked someone whom she worked
with. She saw in this person someone who is very good with money. Someone who
was competent in the work environment. Someone who she perceived as generous to
her own family. Someone who took in many of her family's unwanted kids and
raised them as her own. She only saw this person for a few hours a day and
heard the stories that were passed around about what a swell person the boss'
wife was. What she didn't know was what went on the rest of the time at
this person's house. And she didn't have time to find out.
Just because you
work with someone for years and they are good at what they do, is no guarantee
that they are a good candidate to raise your children. In fact I really
don't blame the candidate, she is only doing what she believes is in the best
interest of the children "as she sees it." She is not my client, nor
is she a member of my client's family and she certainly has no investment in my
client's children. She is a stranger. She is not a monster or ogre, she is a
stranger. She really doesn't understand the family dynamics, history or
idiosyncrasies of the parties, nor does she have an incentive to learn them.
Because she has the power, she is going to try and resolve this situation by
brute force. That is not effective parenting and will ultimately lead to
frustration and failure. Why did this happen?
It happened
because of a basic misunderstanding of the situation. What my client failed to
realize was the fact that her candidate was doing the right thing for her
own family and my client
wasn't. The children the candidate took in were from her own family, and
not strangers. She adopted them, and was raising them as her own children. She
also got the children when they were very young or babies. She had an investment
in these kids. On the other hand, she has no investment in my client's kids
whatsoever. I think that if my client knew that her candidate didn't approve of
how she was raising these children before she died, she would have not used this
person. Not telling my client her true opinion was very disingenuous.
My client saw
someone that she knew from work, whom she thought had a large heart and assumed that this person would
do the same for her kids. She was wrong. Blood is thicker than water. She should
have remembered the lesson of the lions. They don't take in cubs from other
prides.
What can you do to
avoid the same mistakes? Well I would suggest that you start by making a
long overdue peace gesture to your family. It will only hurt for a little
while and then it will be over and you can get down to business. You start by
putting your ego away and realizing that the past is gone and cannot be changed.
You should ask as many family members as possible to help you chose someone that
you reasonably believe would be a good parent for your kids. If they are
old enough, include the kids. Don't be bashful or
shy, ask the kids for their opinions. You should be very candid about the things you expect
from them and ask them what
they would expect from you. Be sure to write things down, so there is no
misunderstanding later on.
You need to talk
candidly about the reality of your death and what that will mean to the family
and your children. You need to talk about money, tuition, school activities, proms, weddings, Bar Mitzvahs,
birthdays, illnesses, and even things like discipline, religion, drugs and
alcohol, friends, boyfriends or girlfriends, sex, parties and health issues. You need to
address what they would do if the children became juvenile delinquents, got
pregnant or
were arrested. You should discuss the grieving period and the need for grief
counseling to help the children cope. The children's need for personal space.
Both you and the candidate would need to understand that this would be a
permanent arrangement, the children would need to be fully integrated into their
family and raised as their own. You have to make it real, because it is.
Lastly would be
the finances. Who would handle their money and make sure that is would be used
on the kids and available for them when they attain their majority. You would
absolutely have to trust these people implicitly. It must be without
reservation. If you have any doubts, then have someone who is good with finances
take care of the money. You also need to give everyone time to consider the
situation. You may even want the children to move in and live with your
candidate for awhile.
I always thought
that my client should have let the children live outside the home while she
handled her illness. I realize that many of you would vehemently disagree. But
from my vantage point, she needed to concentrate all her energy on handling her
illness. She couldn't do that and continue to raise a family, it just wasn't
practical. Cancer and chemotherapy are simply too physically and
emotionally demanding to do both successfully.
Depending upon the
ages of the children, this is the time to begin the
transition of the children over the other parent or guardian. It allows the
other parent or guardian some time to adjust to the new demands that will be
made on them. In some families the increased expenses could be extremely
painful. It could be a make or break issue for some families.
In a normal
case, I would have suggested that my client call her ex-husband
and explain everything to him with the kids present. Then they could
have discussed the up coming changes and how they were all going to deal with
it. I probably would have suggested that at this point in time the children
should have transitioned to living with him while she was still alive. That way
the children could have had some support structure in place to help them cope
with their mother's death. However, in this case none of this was remotely
possible so I never mentioned it. Which means that everyone was caught off guard
when the end came.
But above all else
the most important thing that you should do is to retain an attorney and get the
wills and trust agreements drafted early on. Don't wait until the last minute. I
have had many cases when they waited until the eleventh hour only to die at ten fifty-five. When you have a serious or life threatening
illness, you have absolutely no way of knowing when you will die. You cannot
afford to be foolish.
If you intend to
use a trust, I would also
suggest that you have multiple co-trustees, especially if you use a stranger or
non-family member. You should also be sure that your attorney drafts the
documents, in such a way that it is fairly easy to remove a trustee should it
become necessary. I cannot stress how important this can be if you have a
situation such as this one.
You should also
write down exactly what your intentions are, what you expect from them and
go over them with your guardian or trustee. Make that person sign the paper and
give copies to your attorney and other family members. Ask your family members,
guardian or trustee, if they would have any reservation in carrying out your
wishes exactly. Tell them that you expect them to follow your instructions and
make it very clear that you expect the family or a successor trustee to remove
them if they don't or won't follow them. Be the Mama Bear.
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