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When One of a Child’s Separated Parents Dies

By Nottage and Ward on December 15, 2022

Divorce can significantly impact children’s emotional health. Thankfully, when divorced parents share custody of their kids with each other, the children will have two loving parents, making their existence more straightforward. However, if one of the separated parents dies, you might not know what happens with custody of the child. While no parent wants to think about this, it is best to know should the unfortunate situation ever arise. Here is what the Chicago law says about child custody after the death of one of the parents and how an attorney can help you.

What the Law Says

According to Chicago law, the surviving parent takes custody of the child when the other parent dies. The law automatically grants them sole custody of the child. This is because when one of the separated parents dies, the original custody order becomes non-existent. While this is the situation in most custody cases, there is a significant exception you should know about.

If the surviving parent is ruled to be unfit to take custody of the child after the loss of the other parent, the law might not apply. In such cases, the law suggests other custody arrangements that don’t involve the surviving parent. Other family members like grandparents might be granted custody of the kids. If there are no other relatives, the child will be assigned to foster care for adoption. This option may not be the best, but in the eyes of the law, it is a better option than trying to place a fragile child in the hands of an unfit parent.

Generally, parents with a history of abusing the child will not be awarded custody even after the other parent’s death. During the custody proceedings, records of a parent abusing the children will be used against him or her to prevent them from receiving guardianship. These factors play a crucial role when discussing a child’s guardianship. Parents with a clean record will receive an objection to guardianship when a fellow parent passes on.

What Happens When Both Parents Die?

When both parents lose their life and the child has no legal custodian, family members are the next in line for guardianship. Parents have chosen “godparents” for this specific purpose. However, godparents don’t automatically take over guardianship as the courts tend to prefer grandparents first, then siblings, then distant relatives. While the court tends to look at things that way, the child’s best interest is always put first.

Besides, when no relatives are able or willing to take up a guardianship, family friends might take custody of the children. While this is a possible scenario, courts tend to vet family friends more harshly than it is the case with extended family. If there is no party willing to take custody, the children will become a ward of the state.

Other parties that can request guardianship after the passing of both parents include:

• Grandparents
• Other relatives (aunts and uncles)
• Family, friends, or neighbors

How a Chicago Family Law Attorney Can Help You

If you are a potential guardian fighting for the custody of a child after the passing of one or both of their parents, our Chicago custody attorneys at Nottage and Ward, LLP, are ready to help. We have helped many people in your situation and know what it takes to achieve a favorable outcome. We will discuss your case in detail and determine how we will fight to help you with your case. Our goal is to help you and your child survive this uncertain moment in your lives. Schedule your appointment by calling (312) 332-2915.