Guardianship of a minor is only available in fairly extreme circumstances, but it is an avenue for a non-parent to obtain custody of a minor child when necessary. Specifically, grandparents, aunts, uncles, older siblings, and even non-related third parties have standing (assuming they meet the specified criteria) pursuant to the Probate Act of 1975 (755 ILCS 5/11-1 et. seq.) to request the guardianship of a minor child.
Who may act as a Guardian?
To qualify to act as a guardian, you must be:
- 18 years of age;
- A resident of the United States;
- Of sound mind;
- Not an adjudged person with a with disability as defined within the Probate Act; and
- Not convicted of a felony (with few exceptions).
Do I have to appear before the Court to obtain Guardianship?
Short-term guardianship is an option available to all parties involved without court intervention. A parent may appoint in writing, without court approval, a short-term guardian of an unmarried minor or a child likely to be born. However, a parent shall not appoint a short-term guardian of a minor if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of appointment.
The short-term guardianship is limited to 365 days in duration and can be rescinded at any time by the parent granting such short-term guardianship.
As a result, if you are seeking guardianship over the objection of the parent whose parental rights have not been terminated or seeking a guardianship that is not limited in duration, you must file a Petition for Guardianship before the proper Court and under the proper circumstances.
What are the circumstances in which I can file a Petition for Guardianship?
- When a parent whose parental rights have not been terminated, designates in any writing, including a will, that a person qualified to act under the Probate Act be appointed as guardian of the person or estate, or both, of an unmarried minor or of a child likely to be born. Note, however, the designation of a guardian or successor guardian does not affect the rights of the other parent in the minor.
- When a minor’s living parent whose parental rights have not been terminated, whose whereabouts are known, but who is unwilling and unable to make and carry out day-to-day child care decisions concerning the minor.
- When a minor’s living parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, but: (1) the parent or parents voluntarily relinquished physical custody of the minor; (2) the parent or parents fail to object to the appointment at the hearing on the petition; or (3) the parent or parents consent to the appointment as evidenced by a written document that has been notarized and dated, or by a personal appearance and consent in open court; or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction.
Does the Minor have any say in the guardianship process?
Yes. If the minor is 14 years of age or more, the minor may nominate the guardian of his/her person and estate, subject to approval of the court.
Further, if the guardianship is a contested matter, a Guardian Ad Litem may be appointed on behalf of the minor child and will consider the minor child’s preferences when reporting to the Court what he/she believes to be in the best interests of the minor child(ren).
Can a person seeking guardianship go through the process without legal counsel?
Yes, but due to the formalities and nuances associated with the guardianship process, legal counsel is advised.
Jessica Winkler Boike, Family Law Partner