Guardianship of a Minor Is a Serious Legal Proceeding

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The well publicized tussle between the grandmother and birth mother over guardianship of the Michael Jackson’s three children cast a spotlight on the significance of guardianship when a biological parent is either unable or unwilling to care for his or her minor children.

In Illinois determining the legal guardianship of a minor is a legal preceding under the supervision of the court, says Judge Naomi Schuster, a board member of the Illinois Judges Association who sits in the Circuit Court of Cook County’s Domestic Relations Division, in Chicago. “A judge will consider many factors when determining guardianship,” she states. “The overarching consideration is to make sure that the child will be raised in a safe, secure and stable environment.”

A guardian is typically a family member or family friend who is appointed by the court for a minor under age 18. If the parents are alive and their whereabouts known, they must both agree to the guardianship. If they do not, guardianship can still be awarded if the minor has been living with the prospective guardian for a significant amount of time and agrees to the guardianship arrangement

The Illinois Probate Act states that a guardian must be at least 18 with no felony convictions, a resident of the county or jurisdiction where the minor is currently living, and be of sound mind. A guardian is responsible for making important decisions for the child’s care, comfort, health and education as well as providing clothing, food and shelter for the child; making sure that the child attends school; paying all expenses of the child; and obeying all court orders concerning the child.

Illinois provides for a what is called “subsidized guardianship” when financial assistance if the child has been under DCFS care for one year or more and when the goal of returning the child to his or her home have been ruled out, says Judge Schuster. This financial assistance can include payment for non-recurring expenses related to the guardianship transfer, monthly payments based on the needs of the child and the family circumstances; Medicaid coverage; payment for physical, emotional and mental health needs; employment-related day care; therapeutic day care; and a respite care payment for a child who is medically fragile or dependent on technology.

When the minor reaches 18 years of age, a guardianship will terminate, although, if the circumstances warrant, a court may extend it until the minor reaches age 21.

Misconceptions about Guardianship

One of the frequent misconceptions about guardianship has to do the level of involvement by one of the parents, according to Judge Thomas Dudgeon, who hears guardianship cases in DuPage County.

“Because one parent may not be involved in the child’s life, a petitioner will think that the parent does not need to be notified about the request for guardianship,” he states. “By law, both parents must be notified. Sometimes, it is best to have a third party, such as the Sheriff’s office, notify an absentee parent – but it can take time to locate the person.”

Another misconception about the process is that the party seeking to become a child’s guardian often thinks he or she will do a better job of parenting than the child’s parents. “It’s not a question of who would do a better job, but whether the child’s parents are willing and able to make and carry out the day-to-day decisions in caring for the child.” He explains, “If the parents are willing and able to make those decisions, the court cannot create a guardianship for a child.”

The terms custody, guardianship and adoption are often confusing because each has special meaning under the law, says Judge Schuster. “For example, the physical possession of a minor, requested under an emergency Order of Protection, is not the same as custody or guardianship,” she explains.
A lawyer can help explain the legal differences, so that a person can make an informed decision on which option is best for his or her situation, she says.
The Illinois Judges Association, established in 1971, provides continuing legal education to members of the judiciary and education to the public on the Illinois courts and court procedures.

For further information, write to the IJA at 321 S. Plymouth Court, Chicago, IL 60604-3997, or visit their web site at www.ija.org.
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Note: This information was prepared as a public service by the Illinois Judges Association. Its purpose is to inform citizens of their legal rights and obligations. Consult a lawyer if you have questions about the application of the law in a particular case.