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  1. #1
    glarson is offline Junior Member
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    Who gets custody if one parent dies?

    What is the name of your state? IL

    My husband has a 5 year old child born out of wedlock. He did established paternity in the hospital, and my husband name is on the birth certificate, but the child retains the mother's last name. He pays child support, covers his insurance, pays 100% of all medical bills and splits 1/2 the daycare costs, even though she does not work. He finally got visitation back in April of 2004. There is no custody agreement. The mother has been fighting breast cancer for the last 5 years. She has been living with her mother since the birth of their son and has not work since then. She receives disability from the state. The grandmother claims my husband's son on her taxes every year, which I think he should claim him! Since there is no custody agreement, can the grandmother get custody if the mother is unable to take care of the child or in the event of her death without us knowing? Will my husband have to fight for custody after her death since there is no legal agreement between the both of them since they never married? I feel that the grandmother will try to make sure that her grandson stays with her after loosing her daughter to cancer. My husband thinks that after the mother's death, he can just go over there and get him since his name is on the birth certificate. I dont think the grandma is just going to hand him over. What should my husband be doing to insure that his son goes to him and their is not a long court battle? Does the courts look at what is in the best interest of the child if the grandma tries to seek custody? What should he be doing now? The mother is not doing so well!
  2. #2
    seniorjudge is offline Senior Member
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    Quote Originally Posted by glarson
    What is the name of your state? IL

    My husband has a 5 year old child born out of wedlock. He did established paternity in the hospital, and my husband name is on the birth certificate, but the child retains the mother's last name. He pays child support, covers his insurance, pays 100% of all medical bills and splits 1/2 the daycare costs, even though she does not work. He finally got visitation back in April of 2004. There is no custody agreement. The mother has been fighting breast cancer for the last 5 years. She has been living with her mother since the birth of their son and has not work since then. She receives disability from the state. The grandmother claims my husband's son on her taxes every year, which I think he should claim him! Since there is no custody agreement, can the grandmother get custody if the mother is unable to take care of the child or in the event of her death without us knowing? Will my husband have to fight for custody after her death since there is no legal agreement between the both of them since they never married? I feel that the grandmother will try to make sure that her grandson stays with her after loosing her daughter to cancer. My husband thinks that after the mother's death, he can just go over there and get him since his name is on the birth certificate. I dont think the grandma is just going to hand him over. What should my husband be doing to insure that his son goes to him and their is not a long court battle? Does the courts look at what is in the best interest of the child if the grandma tries to seek custody? What should he be doing now? The mother is not doing so well!

    Q: Who gets custody if one parent dies?

    A: The surviving parent.
    There are two rules for success:

    (1) Never tell everything you know.
  3. #3
    CALIFPROLAW1 is offline Member
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    Quote Originally Posted by glarson
    What is the name of your state? IL

    My husband has a 5 year old child born out of wedlock. He did established paternity in the hospital, and my husband name is on the birth certificate, but the child retains the mother's last name. He pays child support, covers his insurance, pays 100% of all medical bills and splits 1/2 the daycare costs, even though she does not work. He finally got visitation back in April of 2004. There is no custody agreement. The mother has been fighting breast cancer for the last 5 years. She has been living with her mother since the birth of their son and has not work since then. She receives disability from the state. The grandmother claims my husband's son on her taxes every year, which I think he should claim him! Since there is no custody agreement, can the grandmother get custody if the mother is unable to take care of the child or in the event of her death without us knowing? Will my husband have to fight for custody after her death since there is no legal agreement between the both of them since they never married? I feel that the grandmother will try to make sure that her grandson stays with her after loosing her daughter to cancer. My husband thinks that after the mother's death, he can just go over there and get him since his name is on the birth certificate. I dont think the grandma is just going to hand him over. What should my husband be doing to insure that his son goes to him and their is not a long court battle? Does the courts look at what is in the best interest of the child if the grandma tries to seek custody? What should he be doing now? The mother is not doing so well!

    My response:

    Your husband is going nowhere fast without court orders and an official acceptance of paternity from the court. Get into court - - yesterday.

    And, no. Without court orders and paternity being settled, he cannot merely "just go over there and get him." What if she was lying, and he's really not the father? You see, that's one of the reasons why we use courts. The court will have him take a court-ordered DNA test along with the child to remove any doubts.

    IAAL
  4. #4
    Mbarr77 is offline Member
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    Quote Originally Posted by glarson
    What is the name of your state? IL

    My husband has a 5 year old child born out of wedlock. He did established paternity in the hospital, and my husband name is on the birth certificate, but the child retains the mother's last name. He pays child support, covers his insurance, pays 100% of all medical bills and splits 1/2 the daycare costs, even though she does not work. He finally got visitation back in April of 2004. There is no custody agreement. The mother has been fighting breast cancer for the last 5 years. She has been living with her mother since the birth of their son and has not work since then. She receives disability from the state. The grandmother claims my husband's son on her taxes every year, which I think he should claim him! Since there is no custody agreement, can the grandmother get custody if the mother is unable to take care of the child or in the event of her death without us knowing? Will my husband have to fight for custody after her death since there is no legal agreement between the both of them since they never married? I feel that the grandmother will try to make sure that her grandson stays with her after loosing her daughter to cancer. My husband thinks that after the mother's death, he can just go over there and get him since his name is on the birth certificate. I dont think the grandma is just going to hand him over. What should my husband be doing to insure that his son goes to him and their is not a long court battle? Does the courts look at what is in the best interest of the child if the grandma tries to seek custody? What should he be doing now? The mother is not doing so well!
    If dad is legally established as the biological father he would get custody of the child. Grandma would have no legal rights to the child, and could not keep the child. However, I would still have some sort of custody agreement put into place now. Hopefully the mother will win her fight with breast cancer..However, it is always good to have a legal custody agreement in place with the courts regardless.
  5. #5
    CALIFPROLAW1 is offline Member
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    [QUOTE=Mbarr77]

    If dad is legally established as the biological father he would get custody of the child.

    MY RESPONSE: That's my point in my response. So far, he hasn't been "established." He needs a court-ordered DNA test to prove his paternity. Re-read the writer's post.


    Grandma would have no legal rights to the child, and could not keep the child.

    MY RESPONSE: That's not entirely correct. Due to the length of time Grandma has had the child, she may be viewed by the court, and accepted, as the child's "psychological" parent. I've discussed this many times on these forums.

    IAAL
  6. #6
    Mbarr77 is offline Member
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    [QUOTE=CALIFPROLAW1]
    Quote Originally Posted by Mbarr77

    If dad is legally established as the biological father he would get custody of the child.

    MY RESPONSE: That's my point in my response. So far, he hasn't been "established." He needs a court-ordered DNA test to prove his paternity. Re-read the writer's post.


    Grandma would have no legal rights to the child, and could not keep the child.

    MY RESPONSE: That's not entirely correct. Due to the length of time Grandma has had the child, she may be viewed by the court, and accepted, as the child's "psychological" parent. I've discussed this many times on these forums.

    IAAL
    My apologies..I guess I was thinking since there was a child support agreement in place that he had already gone throught he process of establishing himself as the father. Normally they do not order cs unless that has been established. I am not reading the post correctly?
  7. #7
    Mbarr77 is offline Member
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    Quote Originally Posted by glarson
    What is the name of your state? IL

    My husband has a 5 year old child born out of wedlock. He did established paternity in the hospital, and my husband name is on the birth certificate, but the child retains the mother's last name. He pays child support, covers his insurance, pays 100% of all medical bills and splits 1/2 the daycare costs, even though she does not work. He finally got visitation back in April of 2004. There is no custody agreement. The mother has been fighting breast cancer for the last 5 years. She has been living with her mother since the birth of their son and has not work since then. She receives disability from the state. The grandmother claims my husband's son on her taxes every year, which I think he should claim him! Since there is no custody agreement, can the grandmother get custody if the mother is unable to take care of the child or in the event of her death without us knowing? Will my husband have to fight for custody after her death since there is no legal agreement between the both of them since they never married? I feel that the grandmother will try to make sure that her grandson stays with her after loosing her daughter to cancer. My husband thinks that after the mother's death, he can just go over there and get him since his name is on the birth certificate. I dont think the grandma is just going to hand him over. What should my husband be doing to insure that his son goes to him and their is not a long court battle? Does the courts look at what is in the best interest of the child if the grandma tries to seek custody? What should he be doing now? The mother is not doing so well!
    Per the bolded statement I am thinking the poster means he signed the acknowledment of paternity in the hospital..Is that correct glarson?
  8. #8
    CALIFPROLAW1 is offline Member
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    [QUOTE=Mbarr77]
    Quote Originally Posted by CALIFPROLAW1

    My apologies..I guess I was thinking since there was a child support agreement in place that he had already gone throught he process of establishing himself as the father. Normally they do not order cs unless that has been established. I am not reading the post correctly?

    My response:

    She said, "There is no custody agreement." That tells me that a DNA test was never performed and accepted by the court. Look, in order to alleviate the taxpayers, the DA or whomever sets and collects child support in her State, will accept money from ANYBODY. Hell, I could even accept responsibility if I wanted to, and start paying support for this kid. But, that's not the point of the writer's post. The point of the writer's post is, 'who gains custody when Momma Bear dies.' Like I said, without proof of paternity, he would not be able to "legally" take the child, and Grandma has a better-than-even chance of retaining custody due to her "psychological" relationship with the child; i.e., taking the child away from Grandma at the child's age could do more harm than good.

    IAAL
  9. #9
    CALIFPROLAW1 is offline Member
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    Quote Originally Posted by Mbarr77
    Per the bolded statement I am thinking the poster means he signed the acknowledment of paternity in the hospital..Is that correct glarson?

    My response:

    Anybody could sign an acknowledgement of paternity. But, that doesn't make it so. What if she was lying, and the child really isn't his? This is why we have courts and DNA tests - - to lay these issues to rest.

    IAAL
  10. #10
    Mbarr77 is offline Member
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    [QUOTE=CALIFPROLAW1]
    Quote Originally Posted by Mbarr77


    My response:

    She said, "There is no custody agreement." That tells me that a DNA test was never performed and accepted by the court. Look, in order to alleviate the taxpayers, the DA or whomever sets and collects child support in her State, will accept money from ANYBODY. Hell, I could even accept responsibility if I wanted to, and start paying support for this kid. But, that's not the point of the writer's post. The point of the writer's post is, 'who gains custody when Momma Bear dies.' Like I said, without proof of paternity, he would not be able to "legally" take the child, and Grandma has a better-than-even chance of retaining custody due to her "psychological" relationship with the child; i.e., taking the child away from Grandma at the child's age could do more harm than good.

    IAAL

    I apologize for my answer then..I was going on the basis that to establish paternity in Illinois all they requre is the aknowledgement of paternity to be signed. Thank you for letting me know I was incorrect, and will be more careful in the future with my responses.
  11. #11
    glarson is offline Junior Member
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    Yes they both signed the acknowledment of paternity in the hospital.
  12. #12
    casa is offline Senior Member
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    [QUOTE=CALIFPROLAW1]
    Quote Originally Posted by Mbarr77


    My response:

    She said, "There is no custody agreement." That tells me that a DNA test was never performed and accepted by the court. Look, in order to alleviate the taxpayers, the DA or whomever sets and collects child support in her State, will accept money from ANYBODY. Hell, I could even accept responsibility if I wanted to, and start paying support for this kid. But, that's not the point of the writer's post. The point of the writer's post is, 'who gains custody when Momma Bear dies.' Like I said, without proof of paternity, he would not be able to "legally" take the child, and Grandma has a better-than-even chance of retaining custody due to her "psychological" relationship with the child; i.e., taking the child away from Grandma at the child's age could do more harm than good.

    IAAL
    Thank You for mentioning this...I've seen several Grandparents get custody (sometimes even if Paternity is established)...people seem to get caught up on "Grandparents Rights" issues, when the court ALWAYS has the power to rule in the "Child's Best Interest".
  13. #13
    Mbarr77 is offline Member
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    Quote Originally Posted by CALIFPROLAW1
    My response:

    Anybody could sign an acknowledgement of paternity. But, that doesn't make it so. What if she was lying, and the child really isn't his? This is why we have courts and DNA tests - - to lay these issues to rest.

    IAAL
    Not trying to be argumentative, but why would they even allow the aop to be signed thus eliminating the need for the court hearing to establish paternity if it is not going to hold up in court to establish custody? Just looking for further understanding.

    Per Illinois law:
    To make it easier for unwed parents to establish paternity at the time of the child's birth, Illinois law makes it possible for both parents to sign a voluntary acknowledgment of paternity form in the hospital. Signing this form eliminates the court process and is vital to having the father's name added to the birth certificate.
    Last edited by Mbarr77; 05-15-2006 at 02:01 PM.
  14. #14
    glarson is offline Junior Member
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    Can he get a lawyer now and file for full custody, joint, split because she is sick? She is walking around with a walker and she is 38 and has to be transported to get her chemo treatments! Can a judged decide custody? I dont think she will make it easy for my husband!
  15. #15
    casa is offline Senior Member
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    Quote Originally Posted by Mbarr77
    Not trying to be argumentative, but why would they even allow the aop to be signed thus eliminating the need for the court hearing to establish paternity if it is not going to hold up in court to establish custody?


    Per Illinois law:
    To make it easier for unwed parents to establish paternity at the time of the child's birth, Illinois law makes it possible for both parents to sign a voluntary acknowledgment of paternity form in the hospital. Signing this form eliminates the court process and is vital to having the father's name added to the birth certificate.
    It says it's "vital to having the father's name added to the birth certificate"....that's all. You could add anyone's name to the birth certificate. But, that doesn't make that person the biological father.

    It's possible to do establish paternity for the purposes of child support just by the assumed Dad not debating paternity. Which is different from positively establishing paternity via DNA.

    That's why so many people come on here after finding out (years later) they are not the child's biological parent.

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