Child Custody After The Death Of A Parent In Illinois

A Judgment of Dissolution, a Marital Settlement Agreement, and an Allocation of Parenting Time and Parental Responsibilities all determine how two formerly married people (or unmarried parents) must conduct themselves in relation to each other post-divorce (or post-judgment of paternity). What happens if one of the parents dies after an Illinois divorce? What happens to all of those obligations the dead spouse entered into when the parties divorced? Who gets custody of a child after a parent dies in Illinois?  Custody Of A Child After The Death Of A Parent In Illinois If a parent dies in Illinois, the other surviving parent has the right to have complete control over the children. “There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b)(ii) If both parents are dead, the last parent to die can determine who will be the children’s guardian. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor.” 755 ILCS 5/11-5(a-1) The designation of a child’s guardian after the death of a parent must be done in a very specific manner. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor’s person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence.” 755 ILCS 5/11-5(a-1) Section 11-3 of Illinois’ Probate Act says only certain people can be guardians. “A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the […]

from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/child-custody-after-the-death-of-a-parent-in-illinois/