You have just received shocking news that the mother or father of your child has passed away. Suddenly, you are in the position to take a more prominent role in your child’s life by having your child live with you, possibly indefinitely. Who is stopping you from asserting this role? Are the child’s grandparents holding you back? Is a step-parent preventing you, or are you yourself hesitant to change your own lifestyle in this situation? This post explores Illinois law on the subject. Please note that many of the cases on the topic use terms like “custody,” “custodial parent,” and “non-custodial parent.” The 2016 statutory amendments replaced those terms with “parental responsibilities” and “parenting time.”
To begin the legal analysis, the courts will imply constructive parenting time and parental responsibility in favor of the surviving parent, because it is legally presumed that the surviving parent’s right or interest in the care, custody, and control of the child is superior to that of any third person who may otherwise attempt to assert their rights to the child. Marriage of Archibald.