Protecting Children from Bad Parents when a Good
Parent Dies
A good parent’s worst nightmare might be dying and leaving custody of children
to an absent, neglectful or even abusive parent. What happens, then, when a
good parent dies leaving the children to a “bad” parent? How can a “good” parent protect the children
from a “bad” parent in the event of death or disability that prevents a “good”
parent from caring for the children? Guardianship in Chicago can be complicated.
First, if the parents are married at the time of the good
parent’s death, there is not much that can be done if steps have not
already been taken to address the problem. Taking steps to protect your
children before your potential demise, therefore, is crucial. If the bad parent
has left the household and is absent from the children’s lives, it may be a
different story. The same is true if the parents are divorced and the bad
parent is not involved in the children’s lives.
Since all parents have fundamental rights that are protected by
law, one parent cannot terminate the parental rights of the other parent,
except in the case of adoption. The law presumes that maximum involvement
of both parents is in the children’s best interests and the law favors the
involvement of both parents in children’s lives. No matter how uninvolved a
parent is, how far behind in support a parent is, or even how bad a parent is,
parental rights are a factor. Further, since parental rights are protected in
Chicago and the rest of Illinois, one parent cannot unilaterally trump
another parent’s rights.
One parent cannot petition a court to terminate another parent’s rights
in a private legal action, except in the case of an adoption (for instance, by
a new spouse). Even then, parental rights will not be terminated without
sufficient cause, and that cause must be more than a difference of opinion,
different parenting styles or even some bad parenting that does not go as far
as harming or endangering the children. Even when the State seeks to terminate
parental rights for abuse or neglect, parents are given every opportunity to
redeem themselves before those rights will be terminated.
That is not to say, however, that the good parent is without
recourse. During life, if the bad parent has court ordered visitation, the
good parent can ask to have that visitation modified to reduce the amount
of visitation or to require supervised visitation if there is
sufficient cause. A parent with joint custody can also seek to
change joint custody to sole custody for sufficient cause as well. A
parent can petition for the court’s help to resolve any problems that occur in
a shared parenting or visitation arrangement. Taking these steps during life to
confront bad parenting is important because the record that is established
during life may have some impact on the surviving “bad” parent’s rights after
the “good” parent dies.
Apart from the record of parenting established during life, a good
parent can express a preference for care of the children after death. While
Illinois recognizes the parental rights of biological parents, it is not automatic
that an absent parent, or one who has demonstrated neglectful, abusive
or bad parenting behavior, will receive possession of the child after
death of the custodial parent. A good parent can name a guardian in a Will that
may be considered by a court after death, even when there is a surviving
natural parent.
There must be more, however. A third party (like a grandparent, other
family or close family friend) must have “standing” to obtain guardianship of
another person’s biological child. Standing can be established by a close,
intimate relationship and “possession”. Possession means physically having the
children in your care in your home for some period of time.
Hence, having a good support system in place is key. Having
grandparents, other family members or close personal friends who are intimately
involved in the children’s lives and who are able and willing to step in and
take over a parental role immediately after death is vital. The importance of
immediate action cannot be stressed enough in this situation. Once a third
party (like grandparents) have “possession” of the children, they have their “foot
in the door”. The longer that possession
continues before any formal action is taken to establish permanent
guardianship/custody, the more likely “standing” can be established that will
allow a third party, like close family or friends who have a good relationship
with the children, to obtain guardianship, even if there is a surviving parent.
If that person having “possession” of the children is the person named
in the Will as the preferred guardian, the custodial parent’s preference for
guardianship will be considered. While the absent or bad parent is
entitled to notification of any proceedings, the absent/bad parent may or
may not actually contest the matter. A person named as guardian in a
Will, and more importantly, a person who has actual “possession” of a child
will have “standing” to petition a court to seek a guardianship. When a
non-parent has standing, as in these circumstances, the court will make its
determination based on the best interests of the child, and the lack of
involvement or history of bad parenting by the surviving biological parent and
other factors will be considered by the court in making that determination.
Thus, the naming of a guardian in a Will coupled with the intimate
involvement and immediate possession of the children by the named guardian
after the good parent’s death, will be of great assistance to your proposed
guardian in attempting to prevail in a guardianship proceeding.
The reality that even bad parents have rights that are protected may not
be what a good parent wants to hear. Our laws that protect many freedoms
and rights also protect one parent from the unilateral whims of the other
parent in our society. That is generally a good thing, but there is recourse
for a “good” parent to address a “bad” parent, and, with a bit of planning and
understanding, a good parent can tip the children’s future in favor of
their best interests.
If you are in a situation in which the other parent of your children is
largely absent from your children’s lives by his/her own doing, is neglectful
or abusive or is making choices and living a lifestyle that is not in your
children’s best interest, contact the experienced attorneys at M. Scott Gordon & Associates for assistance.
