In the State of Illinois, child custody after the death of a custodial parent can be difficult to resolve. Due to the fact that every custody case is unique, it can be challenging for courts to decide who should be given custody of the child when their parent passes away.
There may be different types of individuals who are willing to or may want to serve as guardians, such as:
- Non-custodial father
- Grandparents
- Family friends
- Other relatives, such as grandparents, aunts, or uncles
- The state
If a child’s mother passes away, under the child custody laws for unmarried parents, a non-custodial father might be able to get custody of the child. In these situations, the father will need to establish their paternity, including having a court formally acknowledge that they are the child’s father.
In order to obtain custody of their child if the mother passes away, the father will need to provide one of the following legal documents:
- The child’s birth certificate that has the biological father’s signature on it
- An acknowledgment of paternity (AOP) form that has been signed and filed with the court
If the parents are divorced and the father does not have a valid acknowledgment of paternity form, they will not have the right to or be able to get custody of their child immediately. Instead, they will need to establish their paternity in court.
In cases where the child’s father did not sign the original birth certificate, a court can modify it. Following the death of the child’s mother, the biological father can request paternity testing.
Fathers are guaranteed certain rights if they have signed the AOP. Even though the specifics can vary by case or location, they usually include the right:
- To have their name listed on their child’s birth certificate
- To be contacted if there is an adoption proceeding
- To be responsible for supporting the child
Signing an AOP form does not automatically secure a father’s right to child visitation or custody. If a child’s father agrees that they will pay child support, it shows that they are willing to be involved in their child’s life.
In these cases, if the child’s new guardian does not want to give the father the right to visitation, a court can override their wishes. This gives the child the opportunity to have a relationship with their surviving parent.
If a family member who is not the child’s parent, such as their grandparent, is seeking custody or visitation, court cases in the state or the custody order will determine if a non-parent will be able to pursue those things in court. For information on the specific custody laws in Illinois, an individual should reach out to a local attorney in Illinois.
How Courts Make Custody Decisions?
When a court is making child custody decisions in Illinois, it will use the child’s best interest standard. There are numerous factors that are examined to determine the best interests of the child, which may include, but are not limited to:
- The child’s mental and physical health, age, and gender
- Child’s established living pattern, such as their:
- school
- home
- community
- religious institution
- If the child is mature enough to share their preferences, those will be considered
- The parent’s ability to provide the child guidance
- The parent’s lifestyle and other social factors
- The parent’s mental and physical health
- The emotional bond between parent and child
- The parent’s ability to provide:
- food
- shelter
- clothing
- medical care
- The current quality of the child’s education
If these factors do not seem to favor one of the parents over the other parent, most courts will focus on which parent is likely to provide their child with a stable environment and who can better foster their relationship with the other parent. This may mean the court gives custody to the parent who has been serving as the child’s primary childcare provider if they are younger.
If the child is older, a court may award custody to the parent who is better able to foster continuity in the child’s peer relationships, education, and religious practices.
What Types of Support Should Children Receive?
When their custodial parent passes away, a child will likely need different forms of support, such as financial and emotional support. When a parent dies, it has both long-lasting and immediate effects on the child, meaning they will most likely need emotional support from those around them.
Examples of issues that can come up when a child’s custodial parent passes away include:
- Estate issues
- Life insurance
- The child being an heir
- Social security benefits
- Testamentary trusts
Typically, if a child’s mother is the parent who passed away, custody will be given to the child’s biological father if their paternity has been established and they are fit to care for the child. It is important to note that child support payments still must be paid until the child’s surviving parent requests a modification and is awarded custody.
Once they have been awarded custody, the parent can make a claim against the custodial parent’s estate, their social security, and their life insurance benefits to help pay for the expenses that are associated with raising the child. A non-parent who is appointed a guardian is entitled to child support from the non-custodial parent or from the deceased custodial parent’s estate.
Why Is It Important to Appoint a Testamentary Guardian of Your Children in Your Will?
If a child’s parents do not name who they want to be their child’s guardian in the event they pass away, someone with interest in the child’s life may have to apply to a court to be appointed the child’s guardian. When this happens, disputes may arise about who should be the child’s guardian.
If the parent makes an appointment of a guardian in their will, it greatly lessens the likelihood that there will be a custody dispute. Even though a dispute may still arise, when a parent appoints a testamentary guardian, it provides a state of their intentions regarding their child.
When Should You Consider Choosing a Guardian?
An individual should choose a testamentary guardian to name in their will as soon as they can after having children. This individual will have a great deal of influence and power over the child’s life.
This means it is important for a parent to choose a guardian whom they trust, who has a bond with their child, and who has the income, time, and energy to care for them properly. It is advisable for the parent to ask the named guardian to make sure they are willing to accept the responsibility.
It is also important for parents to reexamine and reassess their choice of guardian as time passes and make modifications when necessary.
When Do I Need to Contact a Lawyer?
If you have any questions or concerns related to child custody, appointing a guardian, and what will happen to your child after you pass away, it is essential to consult with an Illinois child custody lawyer. Your lawyer will help you create a plan to ensure that your child will be cared for in your absence.
It is very important for you to outline your wishes and who you want to care for your child in the event of your passing. Knowing that your child will always be cared for will give you peace of mind.
LegalMatch can help you find a child custody lawyer near you for free and in just a few minutes. You can complete the online form and you will receive messages from pre-screened and licensed lawyers near you who can help with any concerns you may have.
