Who Takes Care of the Children after the Death of a Parent

Web Admin - Thursday, November 28, 2013

By: Jay A. Andrew


Determining who becomes guardian of a child in the unfortunate event that their parents pass away is an important decision. While parents have the right to make such decisions during their estate planning process, not everyone makes these preparations, and that leaves the decision of who raises the children up to the court. Illinois law guides the court as well as it can, providing general provisions for who qualifies to become a guardian in the Probate Act of 1975.

How the Judge Chooses a Guardian

Illinois law provides considerable freedom to judges in choosing who assumes guardianship of a minor, although the law does place some general restrictions on the court. The guardian chosen must be over 18, a resident of the United States, not convicted of a felony and of sound mind.

For most judges the question is decided by what is in the minor’s best interests of the minor child. The act often repeats that phrase, “the minor’s best interests,” stating that it should guide the judge’s decisions as to who assumes the role of guardian.

The procedure for the choice of guardian starts with the notification of interested persons, usually close family members, that the court will appoint a guardian. People may then petition the court to act as guardian for the minor, and the court will weigh the evidence and use its judgment to try to determine who can best raise the child. Minors over the age of 14 also have the option to nominate their own guardian, subject to review by the court. While these proceedings can often go smoothly and amicably, they can also be more acrimonious, depending on the family relationships involved.

If you are a parent and haven’t made provisions for guardianship of your children you should consider whether or not you want a judge that has never met you and barely met your child to make the determination of what is in their best interests.

Other complicating factors that an estate planning attorney can help you work through are disabled children, learning disabled children, how to keep all of the children together and how to manage combined families along with many other issues that are part of the modern family.

How to Avoid the Guardianship Proceedings

In order to avoid a drawn-out court battle, parents can take control of the situation. Illinois law gives parents the opportunity to name a guardian during their lifetime either in their will, or in a separate document. While the court still reviews this choice, the parents get much more control over their child’s future if they appoint a guardian. Rather than making the court guess at who would best raise the child, it can take the parents’ preferences into account, only overruling them if it finds “good cause” that the parents’ appointment would not be in the minor’s best interest.

If you are thinking about preparing a Will, or want to ensure the future security of your children, contact a Chicago estate planning lawyer today. We serve many northwest suburban areas including Arlington Heights, Schaumburg, Buffalo Grove, Palatine, Rolling Meadows, and other nearby communities.

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