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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I am finalizing my estate plan with my husband. We have three

Customer Question

I am finalizing my estate plan with my husband. We have three minor children age 3 (triplets). We want to make sure we name a guardian in case we both pass on prematurely. We want to name my sister-in-law as guardian of their persons . . . but she resides with her kids in Guatemala. What would happen if we named her guardian? Would there be any process for her to legalize to come here? Would naming her cause our children to be shipped there?
Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

Naming her as the guardian would not give her any legal right to live in the United States. Either the children would have to live in Guatemala, your sister-in-law would liv illegally in the United States or a different person would be named guardian. You should know that naming omeoone as a guardian in your will does not guarantee that the Court will appoint that person as guardia. It merely expresses to the Court your desire.

Steven Kincaid :

Sorry about the typos.

Customer:

What do you recommend then. I realize it is just a guideline for the court. My mother is already in her 60s and unprepared to act as guardian of their person. Is there no legal process that would allow us to appoint my mother temporarily only until my sister-in-law could come here legally? She works for USAID and may have a way to apply for a green card through her work.

Customer:

Who generally gets appointed as guardian when no one is named?

Customer:

and again, God willing, this will never be an issue . .. hopefully at least one of us is around if not both until they are at least 18 . . . but you never know!

Steven Kincaid :

It can happen in one of two ways. A person wants to be guardian files a petition in the California court. If more than one person applies, the Court will decide based on what it believes is in the person's best interests. The California court may refuse to grant guardianship to someone out of the country.

Steven Kincaid :

The second way, when nobody is takung care of the children is that the state will take custody of them. They can then either place the

Customer:

So in our estate plan do we specify temporary guardianship of person to my mother unless and until my sister-in-law can come here?

Steven Kincaid :

children with a relative or in fosyer care.

Steven Kincaid :

foster care

Steven Kincaid :

If the children are being cared for by a relative but nobody files a guardianship petition, the state will not usually intervene.

Customer:

That is interesting to know.

Customer:

Anything else I should know that might be helpful on this issue? Thank you for your response.

Steven Kincaid :

I think what you propose could work. The court can order one person to be a temporary guardian and another person to be a permanent guardian.

Customer:

Ok. That would be the idea then long-term . . . but my sister-in-law would need to be in agreement to apply for her green card through work.

Steven Kincaid :

Orthe grandmother could take care of the kids with out any orders and your sister in law, once

Steven Kincaid :

she arrives can petition for guardianship.

Steven Kincaid :

Filing for guardianship is a LOT of paperwork and there are costs.

Steven Kincaid :

Yes.

Customer:

Makes sense. How do I give you the rating that gets you your money. This was worth $18 to be able to finish things up with my estate attorney. Thanks. (We have plenty of life insurance and savings in case someone needed money to file -- so ultimately the costs shouldn't be a problem).

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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