Chapter 1 Part 7: Sara and Carlos

You Did Not Have the Guidance of a Personal Family Lawyer when Preparing Your Guardian Nomination.

You figured it could not be that difficult to name guardians for your children. You went online to a legal document service and downloaded the forms you would need.

But you were uncertain whom to name. Other than your estranged brother, neither you nor your spouse had any immediate family. Neither of you were close with your extended families. You were at a loss when it came to naming guardians.

One thing you knew for certain was that you didn't want your brother and his wife to take guardianship of your kids under any circumstances.

From the outside, they look like a picture-perfect family, but your sister-in-law is emotionally and verbally abusive to her own children, screaming at them for the smallest infractions. Your brother ignores the situation. Instead, he works sixteen-hour days, neglecting his family as it spirals out of control.

You decided to name your closest friends, Karl and Robin Couch or Patricia and Gustavo Garcia.

The Couches, both teachers, are less affluent than the Garcias. They certainly do not have enough money to send your children to a private school, much less to travel the world extensively. But they share your religion and parenting philosophy. In fact, you and your spouse had known Robin since college and always admired her values. Though you did not know Karl as well, you trusted that Robin would marry a man with similar convictions.

On the other hand, the Garcia children attend the same private school as your children. They spend summer and Christmas vacations in South America. The whole family is trilingual. You and your spouse met Gus and Patsy years ago when you first moved into your neighborhood during college. They became more than neighbors: they became your best friends. You loved them both equally and trusted them unconditionally with your children.

Nevertheless, because they share your religious values, you decided to make Robin and Karl your first choices as guardians. You figured that with proper planning, you could leave behind enough money to have your children sent to private school and to earmark money for foreign travel.

When you and your spouse were discussing potential guardians for your children, you both agreed that if possible, you wanted a married couple to raise your children. Though you had known Karl for only a short time, you trusted Robin enough to know that she would marry a kind, decent man with strong values. The couple was newly married and head over heels in love. They'll never divorce, you thought. But even if they did, you figured you would have time to update your guardianship paperwork to reflect that you would prefer Patsy and Gus Garcia to raise your children.

You never considered what would happen if one of them died. You should have. You spent a lot of time with Robin, and you should have considered the possibility that she might be with you if you died in an accident.

But you did not consider those things. Frankly, you just did not know about everything you should consider when creating the forms. Instead, you followed the online instructions, which did not suggest an individualized consultation with a lawyer trained to help you think through in-depth issues.

As luck would have it, you were not with Robin when you died, but Robin was in the car with your spouse at the time of the accident, leaving Karl as the guardian of your children.

This was not the worst-case scenario, but it was not ideal either. Karl and Robin married only a year before your death. Though you liked him, you did not know him well enough to entrust him with your children.

And your children barely know Karl at all. Karl is a good, responsible man. He cherishes his wife's memory, and as an extension of her, he loves all of her friends. He wants to respect your wishes, so he agrees to serve as guardian of your children. After all, he has no evidence that you wanted otherwise, and he assumes that his religious affiliation guided your choice.

If you had worked with a Personal Family Lawyer, you would have named Robin and Karl as your first choice, but only if the couple remained married. You would have built in a provision to indicate that if the Couches divorced or if either of them died, your children would be raised by Patsy and Gus Garcia.

When your spouse dies, your children are in the care of the Garcias, who locate the guardianship paperwork you have given them and call the police.

Karl is consumed with grief over Robin's death, but he feels a moral obligation to follow your apparent wishes to assume permanent guardianship, and he begins the guardianship process.

In the meantime, your brother learns of your spouse's death. Your brother earns a large salary as the area's leading oncologist. His wife, your sister-in-law, is a homemaker. She is a member of the PTA. She is a charming socialite who serves on the boards of several nonprofits and volunteers her time for charities. The couple sends their children to the best school available. They live in a large home and seem to value education.

They are picture-perfect. Except, of course, for your sister-in-law's constant tirades. And let's not forgot your brother, who is a workaholic. Or their junior high school children, who have had their self-esteem trampled on for so many years that they have already started to turn to marijuana and alcohol to self-medicate.

Upon learning of your spouse's death, your brother and sister-inlaw immediately challenge the guardianship. Karl feels relieved. He is a man who would never shirk his obligation to care for Carlos and Sara, but he is overwhelmed. Karl does not know anything about your brother, but he hopes that the courts grant him custody, and he withdraws his guardianship petition. He feels as if he's been let off the hook. This is the perfect solution! Karl thinks.

But when Gus and Patsy hear that your brother has challenged the guardianship, they file for guardianship. Gus and Patsy know all the sordid details about your brother and his wife.

The ensuing custody battle is long and drawn out, with your children right in the middle. Gus and Patsy, concerned with the well-being of your children, accuse your brother and sister-in-law of being terrible parents.

Though Gus and Patsy's accusation is fair and necessary, you never would have wanted it made in a public forum. Embarrassed and hurt, your brother and sister-in-law dig up dirt on the Garcias. What they find should be innocuous - in any other context, it would have been meaningless and harmless.

But in this situation, it is detrimental. Your brother and sister-in-law find that Gus was arrested for indecent exposure while in college. Of course, you already knew this, because Gus moved into your neighborhood during college. In fact, you and your spouse were with him on the night in question, a night that involved too much beer and Gus's need to urinate right then and there - in public.

At the time, the event was embarrassing. In his adult years, it was fodder for jokes. One way or another, it was the innocent mistake of a young college student. Gus is an amazing father, a role model, and one of the best men you knew.

The courts don't know what to make of the situation. On the one hand, Gus and Patsy are high on your list of potential guardians. On the other hand, they are concerned with the best interests of your child, and your brother and sister-in-law appear picture-perfect. What do the courts decide?

You and Your Spouse Did Not Name Permanent Guardians.

You considered what would happen if both you and your spouse died at the same time. In fact, your parents were together when they died. Your father was an airline pilot who also had a private pilot's license. Though he was an expert pilot, the single-engine plane he was flying could not handle the unexpected storm while he and your mother were flying the short trip from Los Angeles to Santa Barbara.

The first time you and your spouse discussed naming a permanent guardian, you ended up in a fight. The second time, you ended up unable to choose between two couples.

Ultimately, you and your spouse wanted your children to be raised by people who lived in your neighborhood, who shared your spiritual values, and who had similar parenting philosophies. You considered which couples were well traveled, ones who valued foreign experiences and spoke several languages. This left only two couples: Patricia and Gus Garcia and Robin and Karl Couch.

Though the Couches are less affluent than the Garcias, they share your religious values and your parenting philosophy. The Garcias are the picture of culture. Their children know all about art and philosophy. They speak three languages and travel to South America for Christmas and France for summer vacations.

Both couples would have made excellent choices. You would have chosen Gus and Patsy. Your spouse was unsure but was leaning toward the Couches.

Secretly, you told the Garcias that you wanted them to be the guardians of your children. But you never documented anything. You considered making an appointment with a lawyer to help you reach a consensus, but you never got around to it.

You and your spouse did agree, in no uncertain terms, that you did not under any circumstance want your brother or sister-in-law to have custody of your children. Your sister-in-law is emotionally and verbally abusive to her own children. Your brother ignores the situation. Instead, he works sixteen-hour days, neglecting his family as it spirals out of control.

Had you made an appointment with a lawyer specifically trained to plan from a parent's perspective, you would have been advised to confidentially (but specifically) exclude your brother and sister-in-law from guardianship of your children in the event of your death or disability.

The document would have specified that no matter what, your brother and sister-in-law would never be named guardian of your children under any situation. You would have created one, had you known. It would have been a good idea. As soon as your brother and sister-in-law learn of your spouse's death, they hire an attorney and petition the court for custody of Carlos and Sara. The Garcias, who know all of the sordid details about your brother and sister-in-law, also petition the court, requesting custody of your kids.

Your brother is the area's foremost oncologist, and your sisterin- law is a member of the PTA. She is charming and beautiful. She is married to a prominent doctor. She sends her children to the best private school available. She lives in a large house and values education. On paper, the couple looks perfect. Your brother's large salary allows your sister-in-law to stay at home. The Garcias are a two-income family, and both work full-time jobs. Story One: Sara and Carlos 41 When your brother and sister-in-law challenge the petition for guardianship, the courts waste little time. The never meet the Garcias or your brother and sister-in-law. They simply look at the petitions and make a decision.

What do the courts decide? . The courts chose your brother and sister-in-law because they are family and look great on paper. They do not share your spiritual values, and they certainly do not share your parenting philosophy. They are close-minded and never encourage your children to grow and experience new things. They do not fit any of the criteria you had considered when considering guardians.

Your children move across the country with an uncle and aunt they do not know. They become influenced by their aunt. They rarely see their uncle and do not have the love and compassion they need. Carlos becomes more and more withdrawn. He never laughs.

Your brother and sister-in-law value academia but not the arts. They forbid Carlos to take art classes. Carlos struggles through school and is teased and bullied by the other children. In junior high school, Sara starts drinking; in high school, she starts experimenting with drugs. And both miss out on the little things: the countries and cultures you wanted your children to experience, the foreign language and music lessons that were so important to you.

In fact, your children grow into adults that behave nothing like you or your spouse. Sara behaves like your sister-in-law, Carlos like your brother.

Did you increase your family wealth or leave the world a better place?

To choose a different outcome, return to story 1 and choose a different life and legacy for your children.