Can I Request in My Will That My Children Go to Family?

"Can I make a will in Illinois and provide that if I die my children go to live with someone other than my ex husband, like my sister and her family?"

Yes, you can provide in your will that upon your death you would like your children to be in the custody of whoever you choose. However, it is only a statement of your wishes and not binding on the court. So, you cannot by will or gift direct who will have custody of your children if you pass away. A judge or court does not have to follow your will for your stated choice of the next parent for your children.

Who will have custody of your children is usually decided in Illinois by a divorce court or paternity court based upon written petition filed by the person seeking custody.

If there is a living parent usually that parent has the advantage in obtaining custody. However, frequently the other parent has shown little or no interest in the children and they may have been raised within a family by grandparents or other family member. The determining factor is what is in the " best interests" of the children. Best interests depend on many different facts and the judge has a range of potential people to choose from sometimes equally good or equally bad, and the choice at times becomes a difficult one.

While Illinois has traditionally recognized the superior rights doctrine which creates the presumption that the right of a natural parent in the custody of their child is superior to the claim of a third person, the death of a divorced natural parent does not automatically revert custody of the children to the custody of the surviving natural parent. When a custodial parent dies custody is effectively in no one until the court has determined custody.

If you are in need of a family law attorney or counseling on a living will, contact the knowledgeable attorneys of Martoccio & Martoccio at 630-920-8855.

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