[GV70]

What if she set it up in the will, and the bio dad signed some sort of legal agreement saying that he agreed with the provisions as set up? Surely, in that case, the court wouldn't want to mess with an arrangement that everyone is happy with.

It is not the question here

[macksmom]

So my daughters biological father said something the other day that got me to thinking. He said if anything were to happen to me he would step in and take my daughter.

Yeah, sorry Froggy... although that would be ideal... my daughters father would never sign such a document, he would take her just because he has the rights to, he wouldn't think about her absolute best interest.

Well looks like I just have to be extra careful and make sure nothing happens to me! :rolleyes: :D

[ScottGem]

I would still name your husband as guardian in the will. Let the father try to fight it.

[GV70]

The father does not need to fight

[macksmom]

I would still name your husband as guardian in the will. Let the father try to fight it.

Yeah I probably will just in case it would have any bearings... my husband and I got to talking abous this last night and I was telling him of the replies I was getting here... he agrees with you Scott, thinking that they would look at what was best for the child.

Regardless, if anything were to happen to me, he would fight to see my daughter. So I will probably draft up a will and list him as her guardian just to help a little ;)

[GV70]

Legally speaking... ;)


Illinois Compiled Statutes
(750 ILCS 5/601) (from Ch. 40, par. 601)
Sec. 601. Jurisdiction; Commencement of Proceeding.
(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 201 of the Uniform Child?Custody Jurisdiction and Enforcement Act as adopted by this State.
...

(b) A child custody proceeding is commenced in the court:
... (3) by a stepparent, by filing a petition, if all of
the following circumstances are met:

(A) the child is at least 12 years old;
(B) the custodial parent and stepparent were
Married for at least 5 years during which the child resided with the parent and stepparent;

(C) the custodial parent is deceased or is
Disabled and cannot perform the duties of a parent to the child;

(D) the stepparent provided for the care,
Control, and welfare to the child prior to the initiation of custody proceedings;

(E) the child wishes to live with the
Stepparent; and

(F) it is alleged to be in the best interests
And welfare of the child to live with the stepparent as provided in Section 602 of this Act.

[GV70]

It is alleged to be in the best interest and welfare of the child to live with the stepparent as provided is section 602 of the IMDMA (The presumption that it is in the best interest of the child to have the natural parent get custody of the minor in a custody dispute involving a stepparent will stand, unless the stepparent rebuts the presumption
This new law by no means guarantees that a step-parent will be awarded custody after death or severe disability of his/her spouse, but it does allow the Court to review whether vesting custody with the natural parent or step-parent is in the best interest of the child. There is a strong presumption that the natural parent is the appropriate parent to have custody, but this presumption can be overcome by the step-parent with a strong set of positive facts. The Court likewise can now award specific visitation periods after the death of a spouse to a step-parent with a step-child.
There are cases in which stepparents have sought custody of their stepchildren. Usually this occurs in a situation where the couple divorces and the stepparent wants custody or visitation with the stepchild after the divorce. Stepparents don't have an automatic right to custody or visitation and have to prove to the court that they have a close parent-child relationship with the child to even have the chance to go forward with the case. Some states have laws making the process easier, but in general, stepparents have few rights in a divorce.

[GV70]

And compare with

5611. Designation.
(a) General rule.--A custodial parent or legal guardian may designate a standby guardian by means of a written designation unless the minor has another parent or adoptive parent:

Whose parental rights have not been terminated or relinquished;
... (b) Exception where other parent consents.--Notwithstanding subsection (a), a parent or legal guardian may designate a standby guardian with the consent of the other parent.



My questions
1.Is it possible a will to change the law
2.Who has to fight for custody-the father or the stepfather?
That is the LAW;) ;) ;)
Thank you