Rolling Meadows family law attorney deceased parent child custody

When parents are divorced, the death of a parent can create a number of difficulties. If the deceased ex-spouse was the custodial parent, this will likely mean that the other parent will have more parenting time with their child. However, it is important to understand how Illinois courts address child custody in cases in which a parent dies. 

The Courts Are Generally in Favor of the Surviving Parent

When a custodial parent dies, and the courts need to reassign custody of children (known as “allocation of parental responsibilities” in Illinois), they will generally give preference to the surviving parent. The court will typically assume that the surviving parent has a greater interest in the care, custody and control of the child than anyone else. This will generally hold true even when another person, such as a grandparent or stepparent, asserts rights over the child. 

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Barrington child custody lawyerEven those who do not regularly follow celebrity news may have heard about the breakup of Khloe Kardashian and Tristan Thompson. Aside from the entertainment aspect of the story, people may be curious about the legal effects of the breakup and how similar matters would be handled in Illinois. Since the couple has a child together, the question of how child custody and child support will be handled may be on some people’s minds.

Child Custody for Unwed Parents in Illinois

When a child is born to a married couple in Illinois, the husband is assumed to be the father of the child. However, that is not the case when the parents are unwed. If unmarried parents break up, the parentage of the child will need to be legally established before decisions can be made about child custody.

Parentage is established in one of three ways in Illinois. The easiest way is for both parents to complete a Voluntary Acknowledgement of Paternity (VAP) in which they both agree the man in question is the biological father of the child. If the parents do not agree to submit a VAP, a court may order DNA testing to establish that the man is the child’s biological father, and an Order of Paternity will be issued. In addition to these options, the Illinois Department of Healthcare and Family Services may also conduct paternity testing and enter an Administrative Paternity Order.

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Arlington Heights family law attorney parental relocationBeing free to move about the country is one of the rights and privileges enjoyed by all Americans, and being divorced does not necessarily remove this option from the table, even if child custody is shared. For relocations of a significant distance, Illinois law requires a legal process to be followed, ensuring that the rights of both parents are taken into account, and most importantly, the best interests of the child. Ignoring these requirements can lead to significant consequences, including modification of the custody arrangement in favor of the other parent, so working with an experienced family law attorney to ensure the applicable rules are followed is critical.

In one recent case, a drawn out custody fight that now straddles the court systems in Illinois and Massachusetts illustrates how dire the consequences can be for violating parental relocation laws. This case includes an allegation of unauthorized parental relocation as one of the issues both courts are being asked to sort out, and the Illinois court issued an arrest warrant for the father after he failed to attend six hearings related to the relocation. Fortunately, conflict does not have to escalate to this level, as long as parents meet their legal requirements when relocating. 

What Is Considered Relocation?

Not every move will trigger the provisions regarding parental relocation, just those likely to interfere with the other parent’s ability to participate in the child’s life. Thus, when a parent in Illinois who holds the majority of the parenting time, or shares parenting time equally, wishes to move with the child, court approval is necessary, if one of the following is true:

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Inverness child custody attorneyIn a perfect world, all children would live with both parents in a safe and loving home. However, this stable and supportive situation does not exist in all families, and children can end up splitting their time between parents, living solely with one parent, or being cared for by relatives.

Child custody, referred to as parental responsibilities under Illinois law, legally and traditionally rests solely with the parents. Parents are presumed to be fit, and efforts are made to keep children under their parents’ care. For a variety of reasons, however, parents are sometimes unable or unsuitable to take on this responsibility, and in these cases, a safe and stable alternative must be found that protects the best interests of the child. The road to achieve custody rights as a non-parent can be difficult, but not impossible.

Challenges to Custody

The biggest challenge any non-parent will face when seeking to assert custody rights is whether he or she has standing to bring the matter before the court. Standing refers to the petitioner’s ability to maintain a legal case. With non-parents, standing will only be found if the child is not in the physical custody of either parent (step-parents and grandparents do not necessarily need physical custody to gain standing if certain conditions are met). The person caring for the child must have obtained possession by consent, acknowledgment, or acquiescence of the parents, and the arrangement needs to be more than temporary.

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Arlington Heights child custody lawyer parenting time denialProtecting a child from harm is the number one priority for parents. Rarely does this danger come from within a family, but when it does, a parent may be forced to make hard choices to ensure the child is properly protected.

Parents are presumed to have a fundamental right to spend time with and make decisions for their children, and this is reflected in the child custody laws that govern divorce cases in Illinois. As a result, in the vast majority of divorces, both parents will receive some amount of parenting time on a consistent basis. Unfortunately, this arrangement is not always appropriate, and in some cases, corrective action needs to be taken to ensure the child’s safety.

The normal way to address children’s safety involves requesting a modification of the family’s parenting plan, but this process takes time, and that is something a parent concerned about his/her child’s safety may not have. However, refusing to allow parenting time that has been allocated in a divorce decree is a direct violation of court order, and this can have serious consequences. Parents may wonder what to do if circumstances exist that would negate this rule for the child’s sake.

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