Naming a Guardian for Your Children

In the event of death, parents should name legal and physical guardians of their minor children. However, the creation of a guardianship by a parent is not always controlling. Illinois law provides that all custody cases must be decided in the best interests of the child. Anything that can have an effect on the child's physical, intellectual, moral, and spiritual well being is considered by the courts in choosing a custodian or guardian.

A sole surviving parent may name a guardian to take custody of a child upon the parent's death. Courts initially will presume that the parent's choice of guardian is the best choice. However, other relatives or adults significantly attached to the child can challenge the guardianship and seek custody of the child. In that event, the court will decide who should have custody of the child. Anyone who challenges a deceased parent's choice of guardian has a heavy burden to prove that the court should reject the parent's choice.

Where parents are separated or divorced and the custodial parent dies, the surviving parent has custodial rights superior to those of any guardian named by the deceased parent. If the surviving natural parent is incompetent, unfit, missing, or unwilling to care for the child, the court can award custody to a guardian named by the deceased parent. Additionally, if a guardian named by the deceased parent has provided essential parenting for the child, he or she may have standing to challenge a competent, interested natural parent's rights. However, the strong rights of the natural parent are very difficult to defeat.

Whether married, separated, or divorced, parents should strive to identify a mutually acceptable guardian to take custody of their minor children in the event of their deaths. Where separated or divorced parents cannot agree, each parent must realize that the courts will favor the surviving parent but also will consider the claim of an involved third party, especially one identified as the preferred custodian by the deceased parent.

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