Who Gets “Custody” of a Child When a Parent Dies?

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.


Favoritism from the courts should not displace caution, however, as the presumption in favor of the surviving parent is not absolute. Under Illinois law, a “noncustodial parent” is not automatically vested with “custody” upon the death of the custodial parent.  Milenkovic v. Milenkovic.  However, when the “noncustodial parent” has not been found unfit, and has regularly exercised visitation and demonstrated interest in the child, it is proper that he or she be vested with custody upon the death of the “custodial parent.”  In re the Custody of Peterson.  In other words, the surviving parent may have a problem if he or she has failed to spend time with the child regularly, or has failed to demonstrate interest in the child.  Marriage of Brownfield.


A surviving parent may be forced to defend himself or herself from nonparents who wish to obtain parenting time and parental responsibilities for themselves. In such a situation, the final determination as to where the child will live and who will have parental responsibility for the child may be determined by the courts.  Here’s how.


First, nonparents may bring a case if they can prove that they have legal standing to do so. Courts will look at the following factors when determining whether someone has legal standing, rather than mere physical possession of the child: (1) who was responsible for care and welfare of the child prior to initiation of the proceedings, (2) manner in which physical possession of the child was acquired, and (3) nature and duration of such possession.


Upon determining that the nonparent has standing to assert a right to parenting time and parental responsibility of the child, the court must then determine whether it is in the best interest of the child to do so in accordance with Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act. Under that law, the court shall consider all relevant factors including, without limitation, the wishes of the child, the amount of time the surviving parent spent performing caretaking functions, any prior agreement between the deceased and surviving parents, and the willingness and ability of the surviving parent to place the needs of the child ahead of his or her own needs, just to name a few.


A nonparent may also seek to assert rights of parenting time and parental responsibility of the child if the surviving parent has voluntarily and indefinitely relinquished their rights to the child. For instance, in the case of In re Custody of Gonzalez, the surviving father voluntarily placed his dauther with his late wife’s parents while he was stationed abroad while serving in the US Air Force.  Due to his military duties, he was unable to care for the child.  Upon obtaining an honorable discharge, he returned to court to seek custody of his daughter.  The court held that he had voluntarily relinquished possession of his daughter, and that it was in the child’s best interests to remain with her grandparents.


If the surviving parent didn’t voluntarily relinquish his or her parental rights, then the nonparent must prove that the parent is unfit to have rights to the child. This is no easy task to accomplish, as the court in the case of Marriage of Haslett stated: it is virtually impossible for third parties to obtain standing to bring parental rights and responsibility proceedings under the Illinois Marriage and Dissolution of Marriage Act if one of the parents is alive and if the living parent has not been such a bad parent that there are grounds for removal of the child, or grounds for termination of parental rights, under the Juvenile Court Act or the Adoption Act.


All things considered, the courts will give the surviving parent significant deference when it comes to their parental rights. This high level of deference is supported by policy in favor of natural parents over nonparents, or grandparents and step-parents. However, the surviving parent should act fast to assert a dominant right over nonparents, as complacency and bad timing may be held against him or her.


Whether you are a surviving parent or a nonparent, explore your options and the invocation of your rights to the child by consulting our office. Each case is fact specific and it helps to involve experts when you may contemplate bringing a case.

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