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My son's father and I never married, I am raising him myself. Can I make sure my parents get custody if I were to die?

Bloomingdale, IL |

My 3 yr old son's father and I ended our relationship recently. His father has physically been out of his life for the last year, and my son knows him only through phone calls, as he is in another state. He has never been able to hold a job for long, barely even supporting himself. So he has no means to support his son, and a shady background that would prohibit him from properly nurturing him. ( I assume I have sole legal and physical custody, since his father hasn't requested custody. There hasn't been any legal action between us at all- no court orders.) Can I draw something up legally, with or without a lawyer, to have custody go to my parents (who are helping me raise him now), in the event of my death?

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Your preferences for the arrangements to raise your child need to be expressed in a plain, old-fashioned last will and testament. Usually this is done with a guardianship provision. Be aware that you can do no more than state a preference, as it will be the probate court that ultimately decides who will finish raising your child. If the child's father has never legally established his paternity, the likelihood that your preferences would be implemented by the court is strengthened.

Best wishes for an outcome you can accept, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.


When you mention that there has been no legal action at all, do you also include that there has been no admission of paternity? Did your son's father sign the Voluntary Acknowledgement of Paternity? Did he register with the Putative Father Registry? Is his name on the child's birth certificate? If the answer is "No" to all these questions, then the biological father is not presently the legal father. As a result, if the man is not legally the father of your son, he has no rights or responsibilities with regard to the child and you can make any arrangements you like concerning his custody in the event of your death. (You also are not then entitled to child support or any other financial assistance.) In the event of your death.) Keep in mind, however, that the man still could and should assert his rights and you would have to acknowledge that he could seek custody of your child if he legally has the right to do so. Go see a lawyer who is experienced in both parentage actions and estate planning to further details and to write up a will, child's trust or any other instruments which would be appropriate in your situation.


It is possible. Go in person and talk to a family law lawyer who also has background in estate p;anning. You need to consider your assets also. Has the dad ever established legal paternity? Is he on the birth certificate? Does he have any parenting orders? Do not try to do this yourself. If you do it will not be enforceable in court. You need it done legally correct. Saving a bit of money on the lawyer could mean your parents lose your child. Good luck to you and your son and parents.

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There are several factors to consider:

-Were you married when the child was born?
-Was the father on the birth certificate?
-Did he acknowledge paternity through certain signed documents or in court?

If there is no legal connection between the father and the child then there is no legal custody. However if any of the above, as well as a few other possibilities, have occurred then there is a problem with you attempting to give your parents sole legal custody of the child.

Regardless, you should see a lawyer to ensure your will is drawn up properly and follows the Illinois requirements for validity.

This answer is for informational purposes only. This answer does not constitute legal advice, create an attorney-client relationship, or constitute attorney advertising.

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