Many parents delay choosing guardian for kids

updated 4:23 p.m. ET July 30, 2009

NEW YORK - The husband and wife went back and forth, back and forth. Yet however long they talked, they couldn't agree on who should take care of their young kids if, heaven forbid, something happened to both of them.

And so they made an unusual agreement, according to their lawyer: If the children were orphaned in an even-numbered year, the guardian would be the wife's choice, from her family. And if it happened in an odd-numbered year, it would be the husband's choice, from his side.

Such a compromise is certainly odd, but it shows what an emotionally fraught process it is to choose a legal guardian for one's children. It's a procedure that's getting renewed attention these days because of the battle over Michael Jackson's children. But it's something with which ordinary parents also struggle.

In fact, lawyers say, it's so difficult that many parents delay or avoid doing their wills altogether — essentially leaving the decision to the courts.

"As parents, we do everything we can to provide the best for our children," says Mary O'Reilly, a New York trusts and estates lawyer who reluctantly accepted the unusual odd-year-even-year deal because it was the only way to get the parents to agree (she can't name the couple for confidentiality reasons.)

"Yet when our children are most vulnerable and need us the most — that is, when we are no longer here to care for them — parents don't always ensure that their children are taken care of and provided for."

Ideally, lawyers say, such decisions should be made before the child is born. Often, though, it doesn't happen for months or indeed years after the birth. "This is such a tough issue that it prevents some couples from coming in to do their wills," says Michele Kahn, a New York City attorney. "Working out the money is far easier than this."

Parents don’t like to think about it
As for Jackson, he left three kids behind. Despite the obviously unique complications of the pop star's case, he was ahead of many couples in one respect: He had a will.

That 2002 document names the entertainer's mother, 79-year-old Katherine Jackson, as guardian, and lawyers announced Thursday she had reached a custody deal with Deborah Rowe, Jackson's ex-wife and biological mother of the two older kids. Katherine Jackson will retain custody, and Rowe will have visitation rights.

A different aspect of the will raised some eyebrows when it was announced: Singer Diana Ross was named as a backup guardian. Lawyers say it's not exactly rare to name friends, but most often people name family members. Kahn wonders why Jackson didn't pick any of his siblings, for example.

But whomever they name, the first problem most couples encounter is simply imagining leaving their kids behind.

"Nobody likes to think about not being around for their kids. Nobody is as good as you," notes Anita M. Ventrelli, a Chicago divorce attorney and chair of the Family Law section of the American Bar Association.

Nonetheless, you have to choose. How do you do it? Ventrelli, 45, herself faced that problem four years ago, when she was about to give birth to a son. She and her husband talked, and discovered that thankfully, they were on the same page. "The biggest surprise was that we ended up agreeing," she said. They took care of all the documents during her ninth month of pregnancy.

Ventrelli stresses that whatever choice you make, you review it frequently. After all, people do pop in and out of one's life. "Some people pick godparents who later drop out of the picture," Ventrelli says. "Once a year, people should review these things, just as they review their car insurance and their investments."

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