Who Gets Custody of a Child After the Death of a Parent?

February 3rd, 2025 by Tiffany Hughes

Unfortunately, some children experience the premature loss of a parent. When this happens, other adults in the child’s life are left questioning to whom custody of the child is transferred, especially when the parents were divorced or separated and had a custody agreement. The answer to this question is not always clear-cut, and each situation is unique.

Chain of Child Custody – Who Has the Most Claim to the Child?

In Illinois, when one parent is deceased, custody and control of a child is presumed to be awarded to the surviving parent, so as long as the surviving parent is fit and able to care for the child. This is because parents have a constitutional right to the care, control and custody of their children. However, Illinois law always prioritizes the wellbeing of the child over any other independent factor, including legal or biological parentage of a child, thus child custody and the allocation of parental responsibilities can be awarded to an adult other than the surviving parent, if necessary and appropriate in a given situation.

In determining the allocation of parental responsibilities, child custody and legal guardianship, courts must determine which course of action is in the best interest of a child using several factors outlined by 750 ILCS 5/602.7. These factors include the wishes of the child (if the child is mature and able enough to express reasoned and independent preferences), whether a child might have difficulty adjusting to their new circumstances, and the mental and physical health of all individuals involved.

However, before custody of a child may be determined, the adult seeking custody must be deemed “fit.” There are many factors to determine a parent as fit that courts take into consideration, which stem from the elements listed above. These factors include, but are not limited to, the parent-child relationship, whether the surviving parent can provide a stable living environment, whether the surviving parent can meet the child’s needs, history of abuse and neglect, criminal history, and any history of substance abuse.

Can a Grandparent Get Custody After a Parent Dies?

Absent any fit parents, custody of a child is then awarded to a guardian that was previously appointed by the custodial parent prior to passing. If there exists no such guardian, third-parties may petition for guardianship of the child. A third-party may be awarded guardianship of the child if the court finds it to be in the best interest of the child per the elements above. Awarding guardianship to a third party does not violate a parent’s constitutional right to their child when the child’s parent is deemed unfit. Third parties that may petition for guardianship of a child often include relatives such as grandparents or step-parents. For further information regarding grandparents’ rights, please reference our blog post on the subject.

Need More Information or Representation?

If you are concerned about the chain of child custody after the death of your ex, give The Law Office of Tiffany M. Hughes, P.C. a call today at 773-893-0228 for a confidential, complimentary 30-minute phone consultation or email Tiffany Hughes directly at Tiffanyhughes@thugheslaw.com. Our entire practice is solely dedicated to the area of family law. We are highly experienced in providing legal representation to anyone who is fighting for child custody, guardianship, and the allocation of parental responsibilities for a surviving parent, wanting to know more about the chain of child custody and who has the most claim to the child, evaluating custody agreement and estate plans, analyzing the factors to determine a parent as fit, wondering if a grandparent can get custody after a parent dies, or learning more about the rights of a steps parent in a custody battle after loss.

      About Tiffany M. Hughes, Divorce Attorney, Principal, Managing Partner, The Law Office of Tiffany M. Hughes, P.C.:

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.

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This blog is made available by The Law Office of Tiffany M. Hughes, P.C. for educational purposes only as well as to give you general information and a general understanding of Illinois law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and The Law Office of Tiffany M. Hughes, P.C. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in Illinois.  The law changes constantly and we do not go back in time to edit old posts that may be affected by these changes.  If you have any questions about Illinois law, which is the only State this blog and website discusses, please call The Law Office of Tiffany M. Hughes, P.C. for a complimentary phone consultation and do not draw any legal conclusions without speaking to a competent attorney in Illinois first.