by Attorney Eric D. PuryearA guardianship in Illinois is the legal process through which someone other than the parent of a child can legally care for the child. Guardianship are commonly used when a child’s parents are unable or unwilling to care for a child. For example, a relative may seek a guardianship of a child when the parent(s) are incarcerated, addicted to drugs to the point of being unable to care for the child, just not willing/able to parent, or deceased.
Guardianships are essential when caring for a child as a schools, hospitals, daycares, and other organizations will need to see evidence that the person who is not the parent but is caring for child is legally entitled to do so. Properly setting up a guardianship also prevents the problem of a parent who cannot care for the child showing up and taking the child back, as such situations can be quite harmful or even dangerous for everyone involved. Guardianships provide safety and stability for the child as well as the guardian.
755 ILCS 5/11-1, et seq. is the portion of the Illinois Compiled Statutes that governs probate, to include guardianships. Generally speaking, a guardianship will continue so long as the court finds that need for the guardianship exists.
To be qualified to be appointed guardian of a child in Illinois, a person must meet the following requirements which are provided by 755 ILCS 5/11-3:
(1) has attained the age of 18 years;
(2) is a resident of the United States;
(3) is not of unsound mind;
(4) is not an adjudged person with a disability as defined in this Act; and
(5) has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the minor’s best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian’s rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a child, including a felony sexual offense.
Obtaining a guardianship of a child starts with reviewing the situation to determine what course of action is appropriate. In cases where the parent(s) agree to the guardianship, documents that show the parent(s) consent are prepared, which can make the guardianship process more efficient. In other cases, it is necessary to have a Guardian ad Litem (GAL), who is an attorney the court appoints, meet with the guardian and child and parent(s) to prepare a report that the court considers when evaluating whether a guardianship is proper. Eventually, there is a hearing (which may be brief or lengthy) where evidence is presented and the court determines whether the guardianship should be granted. In Illinois, the burden is on the person seeking the guardianship to show that the guardianship is needed.
As an attorney who as represented clients in Illinois seeking to obtain guardianship for a child as well as parents trying to prevent or dissolve a guardianship, my advice to everyone involved in a guardianship situation is to promptly seek an attorney and work with that attorney from the beginning. Cases where guardianships are not properly handled can be unpleasant for everyone.