Legal Question in Wills and Trusts in Illinois

"Father's rights" is a term usually used in divorce proceedings. If there is a death involving a parent of a child who needs a guardian, the court will utilize a "best interests of the child" test to determine who is most appropriate to be the child's guardian. If the child is 14 or older, the child gets a say in who they will live with. The best interest of the child is supposed to trump any "rights" of the father. If the father is an appropriate person (has a relationship with the child, is hopefully employed or employable, a good citizen), he should apply to be guardian.

The natural parent's rights will not be superseded by any guardianship designation in the will regardless whether the minor was born before or after the execution of the will unless that parent agrees, defaults or cannot fulfill the parenting role. The statute specifically provides:

"The court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if it finds that (i) the minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless: (1) the parent or parents voluntarily relinquished physical custody of the minor; (2) after receiving notice of the hearing under Section 11-10.1, the parent or parents fail to object to the appointment at the hearing on the petition; or (3) the parent or parents consent to the appointment as evidenced by a written document that has been notarized and dated, or by a personal appearance and consent in open court; or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction. There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.

"Best interest" would come into play only if the court gets beyond the above.