Legal Question in Family Law in Illinois

Later on down the road I was thinking about writing a will. In it, it will state that if anything should happen to me I would like for my husband to have full custody of my son. He's not the biological father but he's been taking care of him since he was 9 months old. My son is 10 yrs old now. My son's biological father just step into the picture about 2 months ago, but he's not working, he owes about $20,000 in child support, and rarely sees him. My son acknowledge my husband as his father even though he knows who his biological father is. And his biological father hasn't been around all of his life. My question is if something should happen to me, God forbid, will the court system honor my will or will they let my son's biological father have sole custody of him. Just wondering if you could help me out with this question. Thanks a lot. Tiffany :)


Asked on 1/20/10, 4:02 pm

1 Answer from Attorneys
Donald Boyd The Boyd Law Firm, P.C.

Under the Illinois Probate Act a parent of a disabled person is allowed to designate in their will a person, corporation, or public agency to be appointed as a guardian or successor guardian of the person or of the estate or both of that person. Assuming your child is not disabled you could still suggest a designated guardian of your child in you will, but the court may not be bound by your suggestion. Under our system of laws biological parents have many rights. Also, there is a big difference between custody and guardianship. If something happened to you the probate court would probably try to honor the wishes set forth in your will. But if the biological father contested, or if he brought a counter-action in the probate court, or filed an action in the domestic relations court, the outcome is uncertain. Ultimately courts try to protect the best interests of children. Therefore, they would look at both parties and try to determine who would be the better person to raise the child.

Read more
Answered on 1/26/10, 10:12 am


Related Questions & Answers

More Family Law, Divorce, Child Custody and Adoption questions and answers in Illinois