I have been getting lots of questions from readers on naming guardians for their children. I am going to answer them one at a time over the next few weeks.
I got variations on this question from several readers, including Elena in Carrollton:
“My husband and I are originally from Mexico and are permanent U.S. residents. While our children were born here and we intend to stay here for the foreseeable future, we would like my parents in Mexico to take care of our children if something happens to us. Can we name a non-U.S. resident as guardian of our children in our wills?”
Elena’s question hit close to home.
While my siblings and I were born in the U.S., my parents were born in Ireland and immigrated to the U.S. as adults. While going through my father’s papers after he died, I learned that my parent’s plan had been for my siblings and I to go to Ireland and live with my aunt if something had happened to them while we were still minors.
I’m not sure my parents ever discussed their plan with my aunt. Better to ask forgiveness than permission, I guess. She’s our favorite aunt, but going from no kids to three loud and obnoxious U.S. teenagers would have, as my grandmother used to say, “tried the patience of a saint.”
Back to Elena’s question.
The answer is probably.
If you are a U.S. citizen or a green card holder, but most of your family lives abroad in your home country, it is understandable that you may want your children to move to your home country to be taken care of by your family if something happens to you.
However, the courts are not required to respect your choice and may be reluctant to send U.S. citizens to be taken outside of the U.S. to live.
Factors a court would consider in deciding what is in your children’s best interests include the lack of other family members living in the U.S., the ties between your children and the designated guardian, and if your children speak the language of the country they would be moving to.
So what steps should you take to increase the likelihood that a court will respect your choice of guardian?
Work with an estate planning attorney who specializes in international issues to document your choice of guardian for your children. In Texas, you can either include this in your will or in a separate Declaration of Appointment of Guardian for your children.
If you have chosen a non-U.S. resident to serve as your children’s guardian, the attorney should include in the documentation your reasons for choosing him or her as guardian, your understanding that your children will not be raised in the U.S., and why your choice is in the best interests of your children.
Your alternate choice of guardian (yes, you need at least one back-up, hopefully two) should be a U.S. resident in case a court determines that living in your home country is not in your children’s best interests.
Finally, don’t forget to discuss all of this with the person you have chosen to be guardian of your children. You surprise people with flowers, not children to raise.
Please note that the analysis would be different if you are only in the U.S. temporarily and intend to return to your home country.
Struggling with designating a guarding for your children? Leave a comment or send me an e-mail.
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