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  1. #1
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    Default Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    My question involves guardianship in the State of: Ohio

    My wife and I have two young children. We're redoing our will, and want to name guardians for them if something should happen to both of us. We would prefer to name some family we have (a married couple) that are citizens and residents of Canada (Ontario).

    Can this be done?

    Thanks!

  2. #2
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    You can, but the courts may be very reluctant to allow the children to move out of the country. It's far more likely that the children would end up wards of the State, if neither of you have relatives able or willing to take the kids themselves.

    Have you thought about the visa/immigration side of things, too?

    Also, even if you name a relative or friend, the will is not binding in court (in terms of guardianship) - you cannot will your children, although the court can consider your wishes.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  3. #3
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Have I misunderstood the whole process? Let's put aside the whole USA/Canada thing for a minute.

    I thought if we named guardians, and those people wanted to be guardians for our kids, that was all there was to it. You make it sound like the court can analyze the situation and say "we think the kids' aunt & uncle j. doe can do a better job raising them than the guardians you chose" and our wishes get overturned after we've passed on?

    Doesn't seem right at all.

  4. #4
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Unfortunately I think you have maybe misunderstood a little.

    You can't "will" your children. You can assign a 'standby guardianship', naming X & Y to be the legal guardians in the event of your death...but the court is not obliged to grant your wishes. The guardianship must be approved by the court and as a practical matter if the choice comes down to a US-based relative and a Canadian relative...well, the court isn't likely to rule against the US relative unless the US relative is unfit.

    Unfortunately too, we really can't ignore the Canada/US situation because it is a huge factor.

    The courts just aren't too fond of sending minors to live outside of the country when there are US family members willing and able to step in.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  5. #5
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Quote Quoting bxd20
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    Have I misunderstood the whole process? Let's put aside the whole USA/Canada thing for a minute.

    I thought if we named guardians, and those people wanted to be guardians for our kids, that was all there was to it. You make it sound like the court can analyze the situation and say "we think the kids' aunt & uncle j. doe can do a better job raising them than the guardians you chose" and our wishes get overturned after we've passed on?

    Doesn't seem right at all.
    Then think of it this way... children are not property that can be granted to someone in a will.

    A court will, indeed, review the situation and determine what is in the best interest of the children. I strongly recommend the services of an attorney to try to sway the court to the conclusion you want... but it is NOT a sure thing by any stretch of the imagination.

  6. #6
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Quote Quoting Dogmatique
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    Unfortunately I think you have maybe misunderstood a little.

    You can't "will" your children. You can assign a 'standby guardianship', naming X & Y to be the legal guardians in the event of your death...but the court is not obliged to grant your wishes. The guardianship must be approved by the court and as a practical matter if the choice comes down to a US-based relative and a Canadian relative...well, the court isn't likely to rule against the US relative unless the US relative is unfit.

    Unfortunately too, we really can't ignore the Canada/US situation because it is a huge factor.

    The courts just aren't too fond of sending minors to live outside of the country when there are US family members willing and able to step in.
    OK, that makes sense.

    I will say that the US family we have would NOT fight our wishes, for economic and other reasons. In other words none of them would ask the court for guardianship. They'd rather have them go to the family in Canada. (Besides economics, its a matter of age, we don't have any young family here that would raise them with a high quality of life, active, etc. While the family in Canada still has school age children and a stay at home mom.)

    Let me ask this:
    Can a court assign guardianship of our kids to a family member that doesn't want to take them?

    If not - it would be a matter of the state taking them, vs Canadian family as we spelled out to be our wish. And I know the Canadian family would in a heartbeat drive down to Ohio and testify in court that they love these kids and want to raise them.

    Do you feel the state would take them over giving them to Canadian family if no US family wanted them?
    And if you feel there's a chance that would happen, what can we do to try to alleviate this? Should we talk to a Canadian attorney as well? Should we ask our US family to testify in court that the Canadian family is truly best equipped for guardianship; they would probably be willing to do so.

    Your advice/suggestions are very appreciated.

  7. #7
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    No, the courts will never force an unwilling person to take guardianship against their wishes.

    I'm aware of two very recent cases where the custodial parent (a US citizen) died, and the NCP lived abroad. In both cases the NCP wanted custody - and in both cases, the children were made wards of the court and eventually placed with adoptive parents in the US.

    I strongly feel you should have a chat with an attorney who specialises in these things - both here and in Canada. There is the immigration issue too - and even if the courts were to grant your wishes, that's no guarantee the Canadian government would allow the children to become legal residents...I'm by no means completely familiar with Canadian immigration laws, but it's entirely possible that they would need to actually adopt the children before the kids could move to Canada to become legal residents.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  8. #8
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Again, much depends on what is best for the children.

    If the Canadian family are strangers to the children with their only benefit the financial means to raise them, you are whistling in the dark.

    I recommend an attorney in each jurisdiction in question.

  9. #9
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    Default Re: Can U.S. Citizens Name Canadian Citizens to Be Guardians in Will

    Thank you to both of you.

    I will need to talk to an attorney in both Ohio and Ontario I guess and decide from there.

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