Establishing Custody of a Child when Mother is Deceased

My question involves a child custody case from the State of: Illinois

My family is in quite a dilemma and we're not sure of what steps to take in this situation. My cousin passed away on February 23rd due to a pulmonary embolism. She left behind 3 children (1 girl [16] and 2 boys [8 and 5]). Her husband asked my aunt to move in and help out with the kids and she was granted guardianship of the 2 older children since they were not biologically his, but he did help raise them for the past 6 years (so much so that he danced with my niece during her sweet 16 when her biological father wasn't present and raised the 8 yr old boy since he was 2). She was going to include the youngest one in the petition, but since his father was around we all felt it wasn't necessary since he would be around and would continue to care for all of the children as he did when my cousin was alive. Prior to my cousin's passing, we all had a discussion about what would happen if she were to pass away since she had other health issues and it was her wish that the children remain together.

About a month after her death, his presence in the house was scarce. He took another job to supplement his income, so we all initially defended his absence. Once the second job was secure he quit his previous job as a mechanic and stated he would be around more often, yet that proved to not be true as he claimed his new job was offering him more hours. My aunt was caring for all 3 children while also caring for my ailing grandmother, but also had help from myself and other family members.

The children began to question his absence and all we could say was that he's working long hours, but he would come home at various times after midnight (at times around 6am) drunk and wreaking of alcohol. He is known to drink frequently while working at the auto shop (an issue my cousin had with him when she was around) and has been hanging out a lot with his cousins who smoke weed, do cocaine, and pop pills. He's also a frequent user of these substances when he's around them. Initially, we tried to write it off as him trying to cope, but his attitude towards my aunt and the two oldest children began to change. Despite working so many hours and being absent, he claimed to not have enough money to pay the car note or rent, so my aunt paid the last 2 months rent.

About 2 weeks ago the youngest child woke up in the middle of the night asking for his dad and wanted to sleep in his room, however the door was locked. Around 4am his father came out of the room and took the youngest with him in the room. Later that morning, my nephew told my aunt that his father had a woman in the bedroom and he slept in between them. This move was completely disrespectful in the fact that my cousin hasn't been in her grave 6 months and he's already moved on to someone else (we're not naive to think he wouldn't move on, but to do it so quickly and callously was a shocker), he's exposed his son to this woman (which he states he's met this "friend" before), and he brought this woman into the house while my aunt and the other children were present.

I had respectfully confronted him later that day and told him what the youngest child had said and he denied having anyone in the room and said he didn't know why his son would lie like that, but there were pantyliners left next to the night stand that didn't belong to anyone in the house and he wouldn't address it. After explaining to him that as a family we need to have a discission to address any problems, he avoided all communication. The following Sunday my other aunt and my deceased cousin's father sat down to discuss any issues with him and he stated that he was going to move out and find an apartment- while still denying having a woman in the bedroom. He initially stated he would take his son on the weekends, but he's now changed his tune and states he will be taking him permanently, essentially separating the siblings, and we would see him when/if he decides to let us.

This past Friday things went left when my cousin tried to address the issue of having a woman in the bedroom and noticed he had a hickey. He stated that he doesnt owe anyone an explanation (which is true, but out of respect for my cousin he could've handled things better and not expose my youngest nephew to this new girl when he's still trying to cope with the loss of his mother) and that he would be moving out and taking the youngest child with him. My cousin then spoke with his sister who pretty much confirmed that he admitted to her that he did have a woman in the room, but was so messed up from the night before that he didn't know what he did.

Due to the fact that he hasn't played an active role since my cousin had passed and the children were being taken care of by my aunt, and his poor decisions are now impacting the kids, what options do we have? He's currently not a citizen and we don't want him to get deported and not be in the child's life, but given his current behavior we're led to believe that the entire marriage was fraud on his part. Granted that may not be the case, his current actions give us that impression. Also, his name is not on the child's birth certificate. Any advice or resources would be greatly appreciated.

Okay, we need to clarify this first.

The man you're talking about is the father of the youngest child, but not the two eldest, correct?

When you say he's not a citizen, do you mean he's undocumented? Or that he's a permanent resident?

Dad has a right to move out and take his child with him. There is nothing you have mentioned that makes him unsuitable to parent his child. Furthermore, when guardianship was granted for the other children, was that father or fathers served properly? If not, then there are issues there. Why the aunt and your cousin's father thought they had a right to "discuss issues" with this man is beyond me. He is an adult and not doing anything illegal.

The entire marriage was fraud? He was married for six years. That is not fraud. Furthermore, maybe this is how he is grieving for his wife. What you can do is realize that quite frankly he has a right to leave and take his child with him and even determine who can and cannot be in his child's life.

That is correct. He is the father of the youngest child, but not the biological father of the two oldest. He and my cousin were married for almost 4 years and were in the process of trying to get him to become a resident, but nothing was made official at the time of her death.

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Ohiogal- since my cousin has passed he has not played an active role in the children's lives, preferring to go out instead of spending quality time with them. I'm curious as to how his substance abuse and poor decision making regarding the well being of the children makes him a suitable parent. When guardianship was granted for the other children their father's did not contest. The purpose of discussing the issues in the house was to avoid having any friction in the household since we are a family and want what's best for the children involved. It wasn't a case of him needing to get permission on anything, but for everyone involved to be on the same page in regards to the kids since his actions had began to cause tension in the household.

Thank you for clarifying.

(That essentially rules out a fraudulent marriage - taking on two children in addition to your own with your sponsor is just not a common event when we're discussing immigration fraud)

Well, I don't have any good news.

He hasn't been absent from the child's life, and he is the sole custodian. He has the right to move away with his son, and never contact you again - and to be perfectly honest, the mistake was confronting him about his actions. He is quite right - he doesn't have to explain or justify anything. Was it insensitive? Perhaps - but that's also his right. When someone loses a spouse their grieving can be quite outside the "norm" (the truth is there is no "normal" - and I speak from experience). We all do it differently. After 3 months, it's not that unusual for him to be seeking comfort, solace and - yes - perhaps even a new partner.

So I guess you're wondering about custody. Well, there's nothing to answer really; absent a finding of parental unfitness, he's going to remain the sole custodial parent of his son.

The only thing in question is his residency, but that's not going to help you either. If he is deported, the child will go with him.

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Quoting P.J. Delgado

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That is correct. He is the father of the youngest child, but not the biological father of the two oldest. He and my cousin were married for almost 4 years and were in the process of trying to get him to become a resident, but nothing was made official at the time of her death.

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Ohiogal- since my cousin has passed he has not played an active role in the children's lives, preferring to go out instead of spending quality time with them. I'm curious as to how his substance abuse and poor decision making regarding the well being of the children makes him a suitable parent. When guardianship was granted for the other children their father's did not contest. The purpose of discussing the issues in the house was to avoid having any friction in the household since we are a family and want what's best for the children involved. It wasn't a case of him needing to get permission on anything, but for everyone involved to be on the same page in regards to the kids since his actions had began to cause tension in the household.

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You're missing the point - he doesn't have to be in the same book, let alone on the same page, as anyone else.

I'll answer too the part about his drug use.

You'd have to prove it. And I do mean "prove". Of course you'd also have to explain why this wasn't an issue serious enough to get professional help, before he threatened to leave and take his child.

Thank you, Dogmatique. I understand that everyone grieves in different ways, but in regards to the well-being of the child, he's making poor decisions especially since he's been drinking and smoking (and doing who knows what else) instead of playing an active role in the child's life. Would the courts separate siblings and allow him to be placed in an unstable environment?

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The drinking we attributed to grieving. The drug use didn't become apparent until the children started to notice the change in his behavior and after his sister confirmed that his character had also changed for the worse, she even stated she didn't know what he was using.

The thing is, your Aunt - or anybody else - does not stand equal to Dad before the court.

If he's not unfit - and nothing you've said here would actually meet that burden - then it's game over. It really is. Parents make crappy decisions all the time, and the state isn't going to step in without there being a really good reason for doing so. Yes, the courts will separate siblings. If both parents were deceased and two different sets of grandparents were fighting each other for custody, it might be an issue - but not in this situation.

I can't even say he's making poor decisions. He IS active. Not as active as your family would like, but he doesn't need to meet their preferences or requirements.

I understand where you're coming from. I truly do. But this one is a non-starter.

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Quoting P.J. Delgado

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Thank you, Dogmatique. I understand that everyone grieves in different ways, but in regards to the well-being of the child, he's making poor decisions especially since he's been drinking and smoking (and doing who knows what else) instead of playing an active role in the child's life. Would the courts separate siblings and allow him to be placed in an unstable environment?

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The drinking we attributed to grieving. The drug use didn't become apparent until the children started to notice the change in his behavior and after his sister confirmed that his character had also changed for the worse, she even stated she didn't know what he was using.

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Dad is not unfit. He may go out but he leaves the child in the care of a responsible adult. You also have NO EVIDENCE he is using drugs. NONE at all. What is the proof? Has someone seen him using or are people just supposing that he is using? Poor decisions? Drinking and smoking are legal. He is working. And yes the courts will separate siblings.

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Quote:

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Quoting P.J. Delgado

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That is correct. He is the father of the youngest child, but not the biological father of the two oldest. He and my cousin were married for almost 4 years and were in the process of trying to get him to become a resident, but nothing was made official at the time of her death.

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Ohiogal- since my cousin has passed he has not played an active role in the children's lives, preferring to go out instead of spending quality time with them. I'm curious as to how his substance abuse and poor decision making regarding the well being of the children makes him a suitable parent. When guardianship was granted for the other children their father's did not contest. The purpose of discussing the issues in the house was to avoid having any friction in the household since we are a family and want what's best for the children involved. It wasn't a case of him needing to get permission on anything, but for everyone involved to be on the same page in regards to the kids since his actions had began to cause tension in the household.

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Parents are allowed to go out. Were the fathers of the other children properly served? He is a suitable parent because he is no where near legally unfit. Dogmatique is correct on what she has stated.