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Who Gets the Children If the Worst Happens?

 Posted on January 17, 2018 in Family Law

Lombard family law attorneysNo one wants to think about their own mortality, but it is an issue that must be faced eventually. This is especially true if you have minor children. Provisions must be made for them in case the unthinkable happens. While it may seem alarmist, it is actually quite common to draw up a plan or mechanism to ensure that your children are well cared for if you are suddenly removed from the proverbial picture. The most often used method of guaranteeing that stability is to set up a guardianship, but there are other possible options.

Superior Rights Doctrine

As one might assume, if you are married to your children’s mother or father (or once were), Illinois courts will usually grant custody to him or her under the so-called “superior rights doctrine.” There is a general presumption that a biological parent is the best person to raise children, and this will often be followed as long as the parent has not been found unfit. However, there is one doctrine that carries more weight than the superior rights principle, and that is the best interests of the child. Illinois public policy explicitly states that the best interests of the child are the primary concern when ruling on issues in family law, such as parenting time or allocation of parental responsibilities.

In other words, the court has an obligation to place your children with someone other than their biological mother or father if you (the primary caregiver) are out of the picture and there is reason to believe that person being given custody would not be in the children’s best interests. This can sometimes come as a shock to parents who often operate under the assumption that their right to parent trumps all other concerns in such a case. In some other states, indeed, parental rights do come first, but in Illinois, the order of priorities is somewhat different.

Guardianships of Minor Children

While there are other methods by which a caretaker for your children may be named, a guardianship is arguably the smoothest, assuming it proceeds uncontested. The guardianship procedure in most counties will be the same, though it is always a good idea to double-check that your county does not have any unusual rules. Anyone who is over 18 years of age and is of sound mind, and who is a legal, non-disabled U.S. resident (that is, they have not been ruled disabled by a court) may be a guardian. This means that if your children’s other parent is unfit or not in the picture, you probably have options about who to choose that will best serve your children’s interests.

It is important to keep in mind that guardians must bear quite a bit of responsibility for their charges, including paying for all their expenses. In some situations, the child may eligible for benefits or some kind of support may be forthcoming from the parents or their estate, but the guardian must cover all other expenses. , The guardian is also responsible for ensuring that the child goes to school and to generally serve as a role model to ensure the child grows up as well-adjusted as possible. If the person you have in mind is not up to these tasks, select someone else. Your children’s future may depend on it.

Get Help Understanding Guardianships

Guardianships can be quite complex, but they offer families security and peace of mind. To learn more about planning for your child’s future, contact a Lombard guardianship attorney. Call 630-426-0196 today to set up an initial appointment.


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