Author: Chicago Volunteer Legal Services
Last updated: October 2011

Minor Guardianship History and Statutes

History

Traditionally, minor guardianships were fairly simple cases, necessary when parents died or were temporarily unable to care for their children. Most cases were uncontested. The statute was designed to be “easy in, easy out,” with a simplified process and fill-in-the-blank forms.

About a decade ago, however, everything changed. Probate judges found themselves inundated with complex and bitterly contested minor guardianship disputes, caused by a confluence of factors, including a significant shift in the Illinois Department of Children and Family Services (DCFS) policy and a seismic cultural change.

The seismic cultural change has been well-reported. Drugs, mental illness, poverty, joblessness, have all contributed to this phenomenon. Relatives take care of children when their own parents cannot. As more guardianship cases are filed, more contests and family disagreements arise. The law recently changed to address a changing population in probate court.

The law took effect January 1, 2011.

The Illinois Probate Act

The statute governing guardianship is the Illinois Probate Act, 755 ILCS 5/11-1, et seq. Although instructive in some aspects, it is not a comprehensive statute. The Probate Act was amended in January, 2011, eliminating the standard of parental fitness for appointing a guardian, and providing that a nonparent has standing to petition for guardianship if each parent:

• Voluntarily relinquished physical custody of the child and is unwilling and unable to make and carry out day to day child care decisions
• Failed to appear for a hearing after proper notice and is unwilling and unable to make and carry out day to day child care decisions or
• Consented to the guardianship, either in open court or by a written document that is dated, signed and notarized

The statutory amendment tracks custody language from the Illinois Marriage and Dissolution of Marriage Act, (750 ILCS 5/101 et. seq.), so there is a substantial body of case law that offers guidance in minor guardianship cases. Now, the court will first look to see whether parents have either voluntarily relinquished physical custody of a child, failed to appear after receiving proper notice of a court hearing, or consented to the guardianship. For instance, as substantial case law dictates, if a child is living with a parent, or if the parent is otherwise exercising control over the child’s affairs, such as communicating with the child’s teachers, taking the child to the doctor, etc., a nonparent will not have standing to petition for guardianship. But if a parent dropped a child off at grandma’s house for an extended period of time and has remained incommunicado and no one knows where he or she is, grandma may have the right to petition for guardianship. At that point, and only then, can the court consider the parent’s willingness and ability to make and carry out day-to-day child care decisions.

The new Probate law also provides a way for parents to discharge a guardianship. Once a parent establishes, by clear and convincing evidence, that there has been a material change of circumstances, the guardian has to prove, by the same standard, that terminating the guardianship is not in the child’s best interests. These non-exclusive, non-economic factors are to be used by the court in determining those best interests:

• The interaction and interrelationship of the minor with the parent and members of the parent’s household
• The ability of the parent to provide a safe, nurturing environment for the minor
• The relative stability of the parties and the minor
• The length of time the minor has lived with the parent and the guardian and the minor’s adjustment to his or her home, school, and community
• The nature and extent of visitation between the parent and the minor and the guardian’s ability and willingness to facilitate visitation

Other Related Custody and Guardianship Statutes

Illinois has six statutes, including the Probate Act, that provide for an award of custody:

• The Probate Act (755 ILCS 5/11-1 et. seq.)
• The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et. seq.)
• The Illinois Parentage Act of 1984 (750 ILCS 45/1 et. seq.)
• The Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et. seq.)
• The Adoption Act (750 ILCS 50/0.01 et. seq.)
• The Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.)

Each of these statutes treats custody differently. The Probate and Juvenile Court Acts don’t even call it custody. No matter what it’s called, however, the superior rights of the parent are paramount and the best interest of the child is the goal.

This article will explain what Probate guardianship is, how it is different from other custody statutes, and when it is appropriate.

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What is Guardianship?

Guardianship, under these statutes, gives a nonparent legal custody of the child and corresponding parental responsibilities. Guardians must ensure that the child receives proper medical care, an education, and is properly fed, housed and clothed. A guardianship makes it possible for a nonparent to step into the role of a parent in order to care for a child.

Guardianship Under the Probate Act

The Probate Act provides that the guardian of a minor has custody of the minor. 755 ILCS 5/11-13. Case law corroborates the statutory language: “Contrary to Marsh’s assertion, the amended order [recognizing the guardian as the custodial caregiver of the minor] did not alter Cullers’ role as guardian or grant her additional rights. The statement was a clarification of rights already granted.” Guardianship of Jordan M.C.-M. 351 Ill. App. 3d, 814 N.E. 2d 232, 286 Ill.Dec. 582 (4th Dist. 2004).

There are three types of guardianship under the Probate Act:

Person: A guardianship of the person is used when the minor owns no property and has no income. Maintenance income such as public aid, Supplemental Security Income (SSI), or Social Security does not count as income.

Estate: A guardian of the estate has the care, management, and investment of property owned by the minor. She must manage the estate frugally to preserve as much as possible for the child when he reaches majority. This guardianship is usually necessary if the minor owns property such as bank accounts, insurance proceeds or real estate.

Person & Estate: A guardian of the person and the estate combines the two.

Guardianship terminates, by operation of law, when the minor turns 18 years old.

Guardianship Ad Litem

A Guardian Ad Litem (GAL) is a separate type of legal representation. This type of representation is normally requested by a party in a domestic relations case that involves custody or can be appointed by a judge. For more information about working with a GAL in a case, see "Working Effectively with a Guardian Ad Litem."

How is Guardianship Different from Custody under the IMDMA?

Parents Do Not Need to Obtain Guardianship of Their Own Child

Parents are the child’s legal guardian by operation of law. A parent who needs a custody order should file under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), not under the Probate Act. A third-party who wants custody, however, has a choice between the IMDMA and the Probate Act.

Procedural Differences

The procedure for obtaining guardianship is considerably different than the one for custody. The Probate Act requires that a parent be given notice prior to the entry of a guardianship order. Personal service is not required. If actual notice is not possible, service by publication is acceptable.

The Cook County Probate Court requires a criminal and Illinois Department of Children and Family Services (DCFS) background check on any person seeking to be appointed guardian of a child. (It also requires that same information for any parent who petitions to discharge a guardianship to regain custody of a child.) The background check includes Illinois and the FBI. It does not include other states other than what might appear on someone’s FBI record. The Court will not automatically deny the petition of a person with a criminal background, (unless it’s a felony involving harm or threat to a child), but will, most likely, appoint a guardian ad litem to investigate and make a recommendation on that person’s appropriateness. Similarly, information found in DCFS background check (officially known as a “Child Abuse and Neglect Tracking” or CANTS report), will not, necessarily exclude a person, but will cause the court (through a Guardian ad litem) to take a much closer look.

Complexity of Cases

Guardianships are supposed to be “easy in, easy out.” The IMDMA bars custody modifications within 2 years unless there is a showing of endangerment. There is no corresponding limitation under the Probate Act.

For many years the law was muddled regarding the procedure for a discharge of guardianship. That changed on January 1, 2011 when the probate code essentially codified years of caselaw. Under the law, once a parent establishes, by clear and convincing evidence, that there has been a material change of circumstances, the guardian has to prove, by the same standard, that terminating the guardianship is not in child’s best interests. The law lists factors for the court to consider when evaluating the child’s best interests. Those factors are:

1. The interaction and interrelationship of the minor with the parent and the members of the parent’s household
2. The ability of the parent to provide a safe, nurturing environment for the minor
3. The relative stability of the parties and the minor
4. The minor's adjustment to his or her home, school, and community, including the length of time that the minor has lived with the parent and the guardian
5. The nature and extent of visitation between the parent and the minor and the guardian's ability and willingness to facilitate visitation

The “fitness” standard is no longer a consideration for establishment or termination of guardianship and all cases should now apply the standards above.

The relative ease of petitioning for modification can be a problem in guardianship cases. An unhappy or difficult parent can, and sometimes will, petition again, and again, and again, to discharge a guardian, wearing down the guardian, the children, and, possibly the court. Although the parent must show a change in circumstances, case law doesn’t give that requirement any substance. Cook County’s Probate Court sometimes includes the IMDMA’s 2-year rule in a court order either granting an initial guardianship or denying a petition to discharge one, and restricts a parent from petitioning for two years absent a showing of endangerment. Sometimes the court orders a parent to meet certain conditions before petitioning again, in effect, specifying the necessary change in circumstances.

As a general rule, the courts will not allow a guardian to relinquish guardianship unless some other appropriate person will step in to take over. In rare cases, the Probate judge may agree to discharge the guardian and refer the case to Juvenile Court. Otherwise, the only remedy for a guardian is to take the child to the police station and refuse to allow her back into your home. DCFS can and most likely will “indicate” a finding of child neglect against the guardian and may bring criminal charges. In addition, DCFS can prosecute the guardian for the cost of supporting the minor.

Nomination

The Probate Act requires that a minor age 14 or older must “nominate” a guardian, although the court retains the authority to appoint one against the minor’s wishes. Under the IMDMA, the minor’s wishes are one of the factors a court must consider when deciding custody. Court’s are supposed to give greater weight to older children, but there is no specific age mentioned.

How is Probate Guardianship Different from a Juvenile Court Guardianship?

Although cases in Juvenile Court and Probate can have similar issues, the proceedings and law are radically different. A typical Juvenile Court case is initiated because DCFS has done an investigation based on a report to their abuse and neglect hotline. The result of their investigation is either “indicated” or “unfounded”. If the case is indicated and DCFS decides to prepare the case for “screening,” the State’s Attorney has the discretion to file a petition asking that the children be removed from the home and placed in foster care.

How is a Probate Guardianship Different from an Adoption?

Parental rights are terminated in an adoption and are retained in a guardianship. This is a very important distinction. Parents have a nearly absolute right to visitation under a guardianship. They have no such right if a child is adopted. Similarly, parents have an obligation to support a child living with a guardian. That obligation is extinguished in an adoption. (However, as a practical matter, few guardians can count on receiving child support from a parent.) Finally, an adoption is permanent, a guardianship is not.

Determining Where to File

Why does your client want “custody?” To enroll the child in school and authorize medical treatment? To collect public benefits or social security for the child? A Probate guardianship can do that.

What about getting the child on your client’s health insurance? Guardianship may or may not work. Make sure your client has a written proof that a guardianship or custody order will satisfy the insurer because some demand adoption.

Does your client want to get the child SSI? A guardian appointed by Probate Court can apply for it and the client’s income will not be a qualifying factor. However, if the child is adopted, the parent’s income will be taken into account when determining the child’s eligibility.

If a child is getting social security survivor’s benefits on behalf of a deceased parent, neither a guardianship nor an adoption will stop the payments. Survivor’s benefits are considered an “inheritance” by the Social Security Administration. The Probate Act allows children to inherit from a biological parent who died prior to the adoption. 755 ILCS 5/2-4(d)(2).

Guardianship will not solve an immigration problem. Adoption may, but only if the child is 16 years old or younger.

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Determining Probate Guardianship

Who Can Act as Guardian?

A person is qualified to act as guardian of a minor if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian:

• Is at least 18 years of age
• Is a resident of the United States
• Is not of unsound mind
• Is not an adjudged disabled person and
• Has not been convicted of a felony, unless the court finds that the appointment of the person convicted of a felony is in the minor's best interests. As part of the best interest determination, the court must consider the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation. However, someone convicted of a felony involving harm or threat to a child, including a felony sexual offense, cannot be appointed guardian.

Legal Issues and Standards

Standing

Standing is the right to file a petition. In minor guardianship cases, if a nonparent does not have standing, or the right to petition for guardianship, the case must be dismissed. The purpose of a standing requirement is to preserve parents’ fundamental right to raise their children, and to prevent abductions by third parties.

There is a long line of cases interpreting the Probate Act’s standing requirement through language used in the Domestic Relations Act. These cases held that in order for a nonparent to have standing to petition for custody, the child must not be in the physical custody of one of his parents. On January 1, 2011 the probate code changed regarding standing.

Under the revised statute, a non parent has standing to petition for guardianship if each parent:

• Voluntarily relinquished physical custody of the child
• Failed to appear for a hearing after proper notice and is unwilling and unable to make and carry out day to day child care decisions or
• Consented to the guardianship in a written, dated and notarized document

Superior Rights of the Parent and Initial Guardianship

The right of parents to the care, custody and control of their children is, “perhaps the oldest of the fundamental liberty interests recognized by the Court.” Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.E.2d 49 (2000). The Illinois courts and legislature have protected this fundamental right through the standing requirement and the rebuttable presumption of a parent’s willingness, ability and fitness. A nonparent who has standing still has to overcome the superior rights of a parent in order to get guardianship over the parent’s objection. See Wickham v. Byrne, 199 Ill.2d 309, 263 Ill. Dec. 799, 769 Ill. Dec. 1, (2002).

The Petitioner must overcome, by a preponderance of the evidence, the rebuttable presumption that a parent is willing and able to care for the minor and that their appointment is in the minor’s best interest. 755 ILCS 5/11-5.

Child Support

The Probate Act does not grant a guardian the right to receive child support from parents. However, Eckiss v McVaigh, 634 N.E.2d 476 (1994) obligates a non-custodial parent to pay child support even to third parties who are caring for their children.

Judges in probate court often deny petitions for child support and direct the parties to file for child support within the Domestic Relations Division. The parentage court does grant and enforce child support orders for guardians.

Termination or Discharge of a Guardian

As of January 1, 2011, the law changed for discharge proceedings. The burden is on the parent to establish, by a preponderance of the evidence that a material change in circumstances of the minor or parent has occurred since the entry of the order appointing the guardian. Once the parent has established that, the burden shifts to the guardian, who must establish by clear and convincing evidence, that termination of the guardianship would not be in the best interest of the child. The court must consider the following factors related to best interest:

1. The interaction and interrelationship of the minor with the parent and members of the parent’s household
2. The ability of the parent to provide a safe, nurturing environment for the minor
3. The relative stability of the parties and the minor
4. The minor’s adjustment to his or her home, school, and community, including the length of time that the minor has lived with the parent and the guardian
5. The nature and extent of visitation between the parent and the minor and the guardian’s ability and willingness to facilitate visitation

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