How to Choose a Guardian When You and Your Spouse Can’t Agree

Marin Mommies is happy to present another guest article by Marin mom, attorney, and estate planner Thea Beatie Eliot.

For some people, choosing a guardian is easy. For others, it can be very difficult. One of the most common challenges that faces couples who are having trouble choosing a guardian is that they can’t agree.  In fact, this challenge prevents many people from doing any estate planning at all.

In my experience, employing an objective process to choosing a guardian can help to defuse much of the emotion that often bogs down these discussions. To help break through the barrier that occurs when couples can’t agree, I’ve devised the following 7-step process:

Step One: Get Motivated. If you don’t nominate a guardian for your kids, it will be up to a judge to decide without the benefit of your understanding of your children or the cast of characters. None of us knows when we’re going to die and it’s unlikely that you’ll die prematurely. But if something does happen to you prematurely, the results can be disastrous. Disputes can arise among even the most loving families when your wishes aren’t clearly spelled out and legally enforceable. Your kids would already be devastated by their loss. Don’t let them be harmed further by a court battle.

Step Two: Let Go. Most importantly, realize that there truly is no “good answer” to this question. You are far and away the best people to take care of your child. Having them be raised by anyone else if something were to happen to you would only be what’s known as a “necessary evil.” For some reason, for many people it’s easier to search for the “least bad” answer instead of the “best.”

Step Three: Make Your List of Candidates. You and your spouse should each make your own list of everyone who would be better to raise your kids than foster care. Think beyond your siblings and parents. Include people like cousins, aunts, uncles, godparents, nieces and nephews, friends, college roommates and any childcare providers with whom your family has a special attachment. Do not consider financial resources. A good estate plan will ensure there are enough financial resources by preserving your existing assets or making up the difference with term life insurance.

Step Four: Make Your List of Attributes and Values. You and your spouse should each make your own list of the attributes and values you consider most important in raising your children. This includes things like age of the guardian, parenting style, parenting experience, existing relationship with your kids, geographic location, political affiliation, religion, disciplinary style, etc. Be mindful of what’s truly important for your kids to you and try to avoid worrying about what others might think or feel.

Step Five: Combine Your Lists of Attributes and Values. You and your spouse should trade your ranked attributes and values lists at this point. Each of you should share your most important values and attributes and discuss why they are important to you. Your spouse may have thought of important things that you did not and vice versa. Try to combine your lists into a single list of 4 to 6 of your most important attributes and values. If your lists overlap a great deal, this will be easy. If they don’t overlap at all, each of you can choose an equal number of attributes and values (2 or 3) to add to your combined list.

Step Six: Compare Your Combined Short List of Attributes and Values to Your List of Candidates. Together, you and your spouse should go over your lists of candidates in light of your combined list of attributes and values. Consider each person in turn and write down the number of each of your top attributes and values that this person shares. Eliminate anyone who does not share any of your top attributes or values. Rank the rest in order of those who share the most of your top attributes or values to those who share the fewest. This might be your final answer – that is, there may be one clear first choice and a couple of backup options. In any event, try your ranked list of candidates on for size and see how it feels. If either of you feels uncomfortable, talk about why and see where you might be willing to compromise. If you get bogged down, take a break, but make a commitment to pick it back up in a day or so. But don’t delay past a week because this is the kind of thing that if it can be put off, it will, sometimes indefinitely.

Step Seven: Consult An Expert If Necessary. If you can’t reach consensus after going through this process, it’s time to consult an expert. A counselor or therapist who works with couples and/or an attorney who plans from a parent’s perspective can be an invaluable resource in that instance.

Remember, you and your spouse are clearly the best people to parent your kids. But if something happens to you and you haven’t specified who should care for them, you run the risk of putting your children, your family and friends through a lot of unnecessary pain. It is so much easier for you to take care of this today than for them to deal with it later.

Thea Beatie Eliot is a mother of 2 and estate planning attorney who zealously focuses on helping families with young children protect what they love. She lives and practices in Marin County, California.  Learn more about Thea on her blog at www.TheaLaw.com/blog. © 2009 Thea Beatie Eliot