Non custodial non US citizen parent (father) lives in Mexico. Custodial parent of two minor children (5 years old and 1 year old) is US citizen in Illinois. Divorce papers named father but set forth no requirements or terms for visitation, child support etc. There has been little if any contact between children, custodial parent and non custodial parent. Custodial parent lives with her mother and between them, they take good care of minors.
Question(s). IF something were to happen to custodial parent (death, incapacitation etc) can the non custodial parent assert his rights to children and take them? Is it likely the State would step in? Is there anything that can be done now to ensure that if something untoward were to happen to custodial parent, the non custodial parent would be barred from stepping in and the care of minors would revert to custodial parents mother?
Any help or direction is appreciated.

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Originally Posted by SMH12345

Non custodial non US citizen parent (father) lives in Mexico. Custodial parent of two minor children (5 years old and 1 year old) is US citizen in Illinois. Divorce papers named father but set forth no requirements or terms for visitation, child support etc. There has been little if any contact between children, custodial parent and non custodial parent. Custodial parent lives with her mother and between them, they take good care of minors.
Question(s). IF something were to happen to custodial parent (death, incapacitation etc) can the non custodial parent assert his rights to children and take them? Is it likely the State would step in? Is there anything that can be done now to ensure that if something untoward were to happen to custodial parent, the non custodial parent would be barred from stepping in and the care of minors would revert to custodial parents mother?
Any help or direction is appreciated.

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The rights of the natural father come before any other rights, including assignment of rights to other people.

Yes, the non custodial party could assert his rights and gain custody if he is not a danger to the children and, of course, if he wants custody of the children. The State would not step in unless the children were in danger and the danger was reported and investigated.

No, short of having the father relinquish his rights to the children (and that is very, very difficult) you cannot sidestep the rights of the natural father.

Judy is 100% correct, but there is a caveat. The father would have to assert his rights. This means he would have to travel to Illinois and put in a claim for the children.

So my recommendation would be to have an attorney create a will that names the grandparents as guardians of the children. That will won't hold up if the father comes to Illinois to challenge it. But if he doesn't the grandparents can use it to establish legal guardianship.