How can a terminally ill parent control the choice of who will care for her children after she dies?
The short answer is that there is nothing that she can do that is legally binding on the court. While the law allows us to bind the court to abide by our wishes after death in issues related to property, the legislature has taken a child-protection stance and says that this free-reign is not appropriate when it comes to children. The parent’s choices are taken into account, but they are not the only factor considered. Other factors weighed include keeping siblings together (but in blended families this is not always the case), the availability and appropriateness of the other biological parent; the gender and age of the children; and the emotional, financial and physical availability of families. Often a Guardian Ad Litem (see Ask the Judge: Domestic Violence for further information) is appointed as a neutral observer in these cases. This report is accorded much weight. During the 8 to 10 week process of the GAL’s evaluation there is usually a status quo presumption unless there are outweighing factors.

What about "Standby" Guardianships?
These are not currently in use in Massachusetts. In Massachusetts there must be a finding of incompetency before any kind of guardianship can go forward. Although it is a novel idea being discussed and implemented elsewhere in the country and may eventually come here.

How does this get to court in the first place?
Usually someone goes to court after the death or during probate of the will.

Can we ask to have a GAL appointed prior to the death?
It is possible, but Judge Harms thought not advisable. The question to ask is do we want a parent to be confronted with the reality that his/her dying wish is not the final word on what will happen? To ensure that there is no doubt as to the parent’s wishes it is wise to specify them in a will and talk about it with as many friends and family members as possible. If time is short and it is impossible to create or change a will the next best step is a notarized affidavit and the least reliable/convincing is a signed letter.

Another thing to explain to parents is that judges make custody decisions with the attitude that nothing is ever final.
They understand that as the child grows the child’s and/or family’s needs may change.

A social worker was asked by a parent to write a letter in favor of her petition for sole custody of the children. Should she?
Judge Harms stated that sole legal custody is a rarity.

The process to determine custody:
If the parents go to the court motion session with separate plans for sole custody, the judge looks at the plans and briefly questions whether they are realistic. In rare cases it is obvious that one parent’s plan is great and the other terrible, but usually the ruling is for some kind of joint custody arrangement. The family service officer will ask both parties for their suggestions and input on how to implement a joint custody arrangement. If a GAL is appointed this person will try to get the answer to questions such as who really does the majority of the caretaking of the children? If this is very lopsided then the judge may shift to favoring a more than 50 - 50 split. These plans are increasingly flexible as the courts gain experience with different types of arrangements and are open to plans that in the past were assumed to be bad ideas- such as alternating weeks with each parent.

To respond to the particulars about this case, unless someone has known the parties for a long time (5 years or more) and has either a very in-depth relationship or dramatic knowledge, this type of letter would have little impact. So the decision should rest more on one’s clinical judgment of how acting or refusing to act would impact the clinical relationship. But knowing that one can write a letter and that it will be accorded relatively low weight may be freeing in allowing clinicians to honor the request. Another "out" is to say, truthfully, that there will likely be a GAL appointed and that you are willing to talk with that person. Keep in mind that both parties will see any letter that you write. Judge Harms also noted that the courts do take our privilege seriously, so though they may contact us, if we assert the client’s privilege it will be respected. In some cases lawyers advise their clients to waive privilege and sign a release. In this case we are subject to subpoena.

What about Grandparents’ rights?
Grandparents’ rights have gotten a lot of attention lately. Every state now has a relevant statute. The Massachusetts statute is fairly narrow. It only gives grandparents certain rights if their children have cut them off from contact with the grandchildren. Some grandparents have tried to use this to get additional visitation. Unless the grandparent’s adult child will not let him or her see the grandchildren they will not get additional visitation. In some cases grandparents try to get visitation when the parent who is their adult child only has supervised visitation rights. The courts are very careful in evaluating these situations to see if this is a back-door way of getting unsupervised visitation for that parent.

What about Aunts and Uncles?
Other family members have no such rights. Common law only gives rights to parents and the statute is written only for grandparents.

And same-sex parents?
Judge Harms thought this a complex issue and will devote a future session to it.

Name Changes
Are a little known function of the probate court. If the children have been living with a step-father and all are agreed to change their name to his, this is a relatively simple procedure that can mean a lot to the family.

Do you need a lawyer?
In probate court you never are required to have a lawyer. But it is strongly recommended. An example that came up earlier was in the context of child support. Child support obligations end at death. So if dad dies while the kids are young, mom’s child support ends. A good lawyer would have planned for such a possibility and made sure there was life-insurance or a security interest in the house payable to mom.

12/99