Mother died.  Mother and her child had lived with maternal grandmother.   Child was a one year old.  Mother died in a car accident.

The law is clear: upon the death of the custodial parent, “the minor child will then be considered to be in the physical custody of the surviving natural parent,” even if the child is living with someone else.

There was no evidence the mother or father ever voluntarily gave up custody of the child to grandmother.   Father had filed a timely petition for custody less than a month after the mother’s death.

Grandmother filed a petition for custody and adoption of the child. In her petition, she alleged that the child had always lived with her.  She alleged that father was an unfit parent.  He had not established a relationship with the child.  He had not supported the child financially.

Father alleges that he and mother had lived with the child until just before mother’s death.

Grandmother denied father’s allegations. She had witnesses state that the child had always lived with her and mother.  Mother wanted grandmother to care for the child.  Witnesses said that father had told mother that he wanted nothing to do with the child.

The trial court ordered custody to father. Grandmother was not able to prove that the child had not been in in the continuous physical custody of one of his parents since birth. Grandmother appealed.

The appellate court agreed with the trial court.   Grandmother was a “loving” grandparent.  She helped her daughter to care for the child.  But the child remained in mother’s physical custody until her death. Mother lived with grandmother.  Father requested physical custody in a timely manner.

In re Custody of M.C.C., No. 1-08-0203.