Under Illinois law, a person other than a child's legal parent may be appointed to act as their legal guardian. While guardianship is considered a separate type of legal proceeding from the dissolution of marriage, the issue may arise when a minor child's legal parent is going through a divorce. Guardianship can be sought by grandparents, even when the legal parents are not divorcing or planning to end their marriage.
There are many reasons why a grandparent may need guardianship. The grandparent may be taking care of the minor child after the divorce of the child's parents, and they may need the legal authority to make decisions that affect the child’s life. For example, legal guardianship may be required to include the child in the grandparent’s insurance coverage or to register the child in school.
In order to qualify to be a legal guardian for a minor, a person must be at least 18 years old and a resident of the United States without a felony conviction. They must also be of sound mind and not disabled. Beyond these primary qualification criteria, a guardianship petition may be rejected if the court finds that the person seeking guardianship has contributed to the minor child’s neglect or abuse. The only exception is if two years have passed since the last proven incident of abuse or neglect, and the court concludes guardianship is in order, taking into account the minor child’s best interests.
If one or both of the minor child’s parents are alive, they may consent to the legal guardianship sought by another party. This is done by providing written consent naming the qualified person who seeks the guardianship, and this consent must be witnessed by two credible individuals who are at least 18 years old. Neither witness can be the individual the parent has designated as the legal guardian.
A court will likely not grant a request for legal guardianship when the following factors are in play:
The minor child’s legal parent is alive, and his or her parental rights are intact. That is, parental rights have not been terminated by a court order.
The whereabouts of the legal parent are known.
The legal parent is willing and able to take care of the child, including making decisions about the child’s day-to-day life.
Under these circumstances, it is difficult to overcome the presumption that the legal parent is competent and fit as a parent and therefore entitled to full custody of the minor child.
At Mevorah & Giglio Law Offices, we have more than 200 years of combined experience representing clients in family law matters. If you believe legal guardianship is needed to take care of your grandchild or another minor child, we can help guide you through the process of petitioning the court to appoint you as the legal guardian. To schedule a free consultation with one of our compassionate Lombard family law attorneys, call our office today at 630-932-9100.
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