What is Guardianship?
Guardianship is a court process that grants a non-parent legal custody of a child. Guardianship allows a non-parent to act in place of a parent to make decisions that will affect the welfare of a child. Guardians have to guarantee that the child receives food, clothing, and shelter, as well as an education and appropriate medical care.
Unlike with an adoption, a guardian can be appointed without having to end the birth parents’ rights over the child. The court has jurisdiction until the child turns 18 years old. The court has to rule out the options of adoption and of a possible permanent return of the child to the parental home before it will award guardianship. The child’s parents may agree to the guardianship. If the parents do not agree, they will be offered a chance to object to the guardianship in court unless their parental rights have already been taken away.
The court must always consider the best interests of the child when determining guardianship. In doing so, the court will look at the following factors:
The wishes of the child (a child over 14 must give consent);
The wishes of the guardian and his or her relationship with the child;
The child’s ability to adapt to the new home, school, and community environments; and
The physical and mental health of all parties involved.
In the process, the Illinois Department of Children and Family Services (DCFS) will also perform an investigation, a home study, and a criminal background check.
A person is qualified to act as a guardian if the court finds that the proposed guardian:
Is at least 18 years old;
Is a United States resident;
Is not of unsound mind;
Is not disabled; and
Has not been convicted of a felony.
Illinois has specific statutes that provide for an award of custody:
The Probate Act;
The Illinois Marriage and Dissolution of Marriage Act ;
The Illinois Parentage Act of 1984;
The Illinois Domestic Violence Act of 1986;
The Adoption Act; and
The Juvenile Court Act of 1987.
The statute governing guardianship in Illinois is the Illinois Probate Act.
There are three types of guardianship under the Probate Act:
Person - when the minor owns no property and has no income;
Estate - when the guardian cares for, manages, and invests in the property owned by the minor; and
Person and Estate - when the guardian acts on behalf of both the person and the estate.
The Illinois Probate Act was amended in January, 2011. It eliminated the standard of “parental fitness” for appointing a guardian. It now also allows for a non-parent to have standing in court. Under the amended law, the court will determine if the parents have voluntarily relinquished physical custody of a child, failed to appear in court after getting proper notice of a court hearing, or consented to the guardianship.
Discharge of Guardianship
Parents can discharge a guardianship. The standard of proof for both sides is clear and convincing evidence. The parents must establish there has been “a material change of circumstances.” Once the parents can establish this, then the guardian has to prove that end the guardianship is not in the best interests of the child.
The court will look at the following factors to determine the best interests:
How the child interacts with the parent and anyone living in the parent’s household;
Whether the parent can provide a safe environment for the minor;
How stable are the parties involved;
How long the child has lived with the guardian and how the child has adjusted to his or her environment; and
What the visitation dynamics are between the parent and child and how the guardian controls visitation.
For more information about family law issues such as guardianship, please contact the experienced Chicago family law attorneys at Mevorah & Giglio Law Offices. We are prepared to assist you will all your family law needs.
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