Custody vs Guardianship in Illinois: What You Need to Know

If you face decisions about child’s care in Chicagoland, you must understand the difference between custody and guardianship. Illinois law creates separate rules for each option, and your choice affects your legal rights and the child’s wellbeing.

At Anderson Boback & Marshall, our attorneys help families through these issues across Cook, Lake, DuPage, and Will counties. This guide answers your questions about custody vs guardianship in Illinois so you can make smart choices for your child’s future.

Part 1: Understanding Custody vs Guardianship Illinois

Child Custody in Illinois

Illinois family law changed in 2016. The law replaced “custody” with “allocation of parental responsibilities.” Despite this legal change, many people still use “custody” in everyday conversations.
Under Illinois law (750 ILCS 5/602.1), parental responsibilities include:

• Decision-making: The right to make choices about school, healthcare, religion, and activities
• Parenting time: The schedule for when the child lives with each parent

A judge can give these responsibilities to both parents jointly or to one parent exclusively, based on the child’s best interests

Guardianship in Illinois

Guardianship operates under a different set of rules (755 ILCS 5/11-5) and typically involves non-parents seeking to care for a child. Unlike custody cases between parents, courts grant guardianship when parents cannot or will not fulfill their responsibilities.
Illinois recognizes several types of guardianship:

• Guardianship of the person: Authority to make daily care, living, school, and medical decisions
• Guardianship of the estate: Management of a child’s money or property
• Full guardianship: Combines both person and estate guardianship
• Temporary guardianship: Short-term arrangement for up to 60 days
• Emergency guardianship: Expedited process for urgent situations

The law refers to a child in guardianship as a “ward.” The guardian assumes parent-like duties but faces certain limitations.

Key Differences: Custody vs Guardianship

The main differences between these legal options include:

1. Who can file:

• Custody/parental responsibilities: Primarily parents
• Guardianship: Any concerned person, including relatives, stepparents, or others

2. Legal standard:

• Custody: Best interests of the child between fit parents
• Guardianship: Proof that parents cannot or will not care for the child

3. Termination process:

• Custody: Requires showing a substantial change in circumstances
• Guardianship: Court terminates when parent demonstrates ability to resume care

4. Legal relationship:

• Custody: Maintains all parental rights and responsibilities
• Guardianship: Parents retain residual rights while guardian exercises day-to-day authority

Understanding these key differences helps you determine which option fits your family’s situation in Chicagoland.

Part 2: How to File in Chicagoland Family Courts

Filing for Custody in Chicagoland

To initiate a custody case in the Chicago area, you must:

1. Complete necessary forms:

• Petition for Allocation of Parental Responsibilities
• Child Custody Jurisdiction Form
• Child expenses affidavit
• Parenting plan

2. File in the appropriate county courthouse:

• Cook County: Mainly at the Daley Center in downtown Chicago; some cases at courthouses in Skokie, Rolling Meadows, or Bridgeview
• Lake County: Lake County Courthouse in Waukegan
• DuPage County: DuPage County Judicial Center in Wheaton
• Will County: Will County Courthouse in Joliet

3. Follow filing procedures:

• Submit completed forms to the Clerk’s office
• Pay filing fees ($300-$400 depending on county; fee waivers available)
• Serve documents to the other parent
• Attend the initial court date

4. Participate in mediation: All counties require parents to attempt mediation before contested hearings, unless domestic violence or other exceptions apply.

Obtaining Guardianship in Chicagoland

The guardianship process differs significantly from custody proceedings:

1. Required documentation:

• Petition for Appointment of Guardian for Minor
• Guardianship information sheet
• Notice of Motion
• Order Appointing Guardian

2. Procedural steps:

• Notify parents and any minor over 14 years old
• Schedule and attend court hearing
• Obtain Letters of Office if granted guardianship
• File annual reports with the court

3. Evidentiary requirements:

• Demonstrate parents’ inability or unwillingness to care for child
• Submit to background check
• Participate in home study if required
• Prove arrangement serves child’s best interests

Emergency Cases

When a child faces immediate danger, all Chicagoland counties provide these options:

1. Emergency custody modification:

• Requires proof of imminent danger to child
• Court schedules emergency custody hearing within days
• Judge issues temporary orders pending full investigation

2. Emergency guardianship:

• Filed when child needs immediate protection
• Court may grant without full notice to parents in truly urgent situations
• Limited to 60 days but eligible for extension
• Requires subsequent hearing with notice for permanent guardianship

Custody Orders: How to Act Fast When Your Child’s Safety Is at Risk

Part 3: Special Situations in Custody vs Guardianship Cases

Non-parent Custody Rights in Chicagoland

Illinois law creates a path for non-parents seeking custody, though it can be challenging:

1. When you can apply:

• Child is not living with a parent, or
• Parent willingly gave up care of the child, or
• Parent has been absent from the child’s life

2. What you must prove: Non-parents must show that both parents are unfit, unable, or unwilling to care for the child.

3. Helpful tips:

• Guardianship is usually easier to get than non-parent custody
• Having parent consent makes your case stronger
• Keep records showing you’ve been caring for the child

4. County differences:

• Judges in different counties may interpret the rules differently
• DuPage and Lake counties often want more proof of unfit parents
• Cook County may respond faster to emergency non-parent custody requests
• Will County usually wants strong proof you’ve been caring for the child

Grandparents’ Rights in Illinois

Illinois law has special rules for grandparents seeking custody or visits:

1. Visitation rights:

• Grandparents can ask for court-ordered visits in certain situations
• Court must find that not allowing visits harms the child
• Judge looks at the existing relationship between grandparent and child
• When a parent has died or can’t care for the child, grandparents have stronger claims

2. Custody options:

• Grandparents follow the same rules as other non-parents
• Courts often value keeping family connections
• Grandparents still must prove parents can’t or won’t care for the child
• Keep records of your history caring for your grandchild

3. Guardianship as another option:

• Often easier to get than custody for grandparents
• Doesn’t require as harsh findings about the parents
• Keeps parents’ legal relationship while giving grandparent authority
• Can be a temporary solution during family crisis

Military Parents vs Grandparents Rights

Military families face special challenges with custody and guardianship:

1. Protections for military parents:

• Illinois law prevents custody changes just because of deployment
• Parents can arrange temporary care during deployment
• Courts can hold special hearings before deployment
• Rights to video calls during overseas duty

2. Options for grandparents during deployment:

• Temporary guardianship while parent is deployed
• Court-ordered visits in some cases
• Limited decision-making power through power of attorney

3. Planning ahead:

• Family Care Plans that include custody details
• Naming preferred caregivers in advance
• Clear plans for when the parent returns

Children with Special Needs

For children with disabilities, custody and guardianship have extra considerations:

1. Guardianship for older children:

• Guardianship can continue after age 18 for dependent adults
• Special education decision-making
• Medical consent rights

2. Decision-making issues:

• Specialized healthcare decisions
• School placement choices
• Coordinating services

3. Benefit management:

• SSI and public benefit issues
• Special needs trust oversight
• Planning for long-term care

Part 4: Modifying Custody and Contesting Guardianship in Illinois

Modifying Custody Arrangements

When things change, Illinois law lets you change custody orders:

1. What you need to show:

• A big change in circumstances
• The change happened after the last order
• The change would be better for the child
• Courts are stricter about changes within two years of the first order

2. Common reasons for changes:

• Parent moving far away
• Major changes in parent’s lifestyle affecting the child
• Child’s needs changing as they grow up
• Parent repeatedly interfering with court-ordered time

3. Steps to take:

• File petition for change in the original court
• Include specific facts about what has changed
• Serve papers on the other parent properly
• Be ready for mediation and court hearings

4. Enforcing orders:

• Court can order make-up time for missed visits
• Judge can make the other side pay your attorney fees if they’re unreasonably breaking rules
• Repeated violations might justify custody changes
• Court can use contempt powers for someone willfully disobeying

How to Contest Guardianship When Seeking Custody

Parents who want to regain custody from guardians need to:

1. File the right papers:

• File petition to end guardianship
• Show things have changed
• Prove you can now care for your child
• Address the original problems that led to guardianship

2. Court process:

• Guardian must be served with papers
• Court may appoint someone to investigate
• Hearing scheduled to look at parent’s current situation
• Step-by-step plan often used for return of child

3. Tips for success:

• Show you’ve completed required services or treatment
• Have stable housing and income
• Stay involved with your child during guardianship
• Be willing to accept a gradual return plan

Emergency Custody vs Temporary Guardianship

In crisis situations, knowing which emergency option to use is important:

1. Emergency custody change:

• Only for parents with existing case
• Must show child is in immediate danger
• Gets temporary order until full hearing
• Focuses on immediate safety

2. Temporary guardianship:

• For non-parents
• Limited to 60 days
• Must show why immediate action is needed
• Can be extended if permanent case is ongoing

3. How to decide which to use:

• Your relationship to child (parent or non-parent)
• If you already have a court case
• Type of emergency
• Long-term goals for the child

Terminating Guardianship

There are several ways a guardianship can end:

1. Parent asking to end guardianship:

• Parent must show they can now care for the child
• Court looks at whether the original problems are fixed
• Judge considers what’s best for the child
• Often includes a step-by-step return plan to ease the transition

2. Child’s right to ask for changes:

• Children over 14 can ask to change or end guardianship
• Court listens carefully to mature teens’ wishes
• Judge usually appoints someone to look into the situation
• Judge still makes the final decision

3. Child becoming an adult:

• Guardianship of a minor automatically ends at age 18
• Adults with disabilities may need a new guardianship case
• Court can end guardianship early if minor gets married
• Financial guardianship may continue until court orders money distributed

4. Changing guardians:

• Guardian can ask to step down
• Court must approve a new guardian
• Judge makes sure the child is protected during the change
• New guardian takes over all responsibilities

Non-parent Custody Without Ending Parent Rights

One big advantage of guardianship over adoption is keeping parent rights intact:

1. Legal differences:

• Guardianship keeps the parent-child legal relationship
• Non-parent custody also keeps parent rights in place
• Adoption, however, ends all parent rights

2. Parent rights during guardianship/non-parent custody:

• Right to reasonable visits
• Right to ask for custody back
• Input on major decisions
• Still must pay child support

3. Practical tips:

• Guardianship is usually easier to get than non-parent custody
• Guardianship is easier to end if parent situation gets better
• Guardian has more limited authority than adoptive parent

Frequently Asked Questions About Custody vs Guardianship Illinois

Does guardianship end parent rights in Illinois?

No. Guardianship creates a legal relationship between guardian and child while preserving the parent-child legal relationship. Parents retain rights to reasonable visitation and can petition to terminate guardianship when circumstances change.

How long does guardianship last in Illinois?

Guardianship typically continues until the minor turns 18, the court terminates the arrangement, or the guardian resigns/is removed. For children with disabilities, guardianship may extend beyond age 18.

Can guardians get child support in Illinois?

Yes. Under Illinois law (750 ILCS 5/505), biological parents remain financially responsible for their children even after a court appoints a guardian. Guardians can petition for child support from the parents.

How long does a contested guardianship case take in Chicago area courts?

Contested guardianship cases vary widely in duration. The timeline depends on many factors including court schedules, case complexity, level of conflict between parties, and county-specific procedures. Some cases resolve in a few months, while others may take a year or longer. Always consult with an attorney about realistic timeframes for your specific situation.

What happens if parents object to guardianship in Illinois?

When parents object, the case becomes contested under 755 ILCS 5/11-10.1. The court schedules hearings where the person seeking guardianship must prove the parents are unfit, unable, or unwilling to care for the child. A fit parent’s objection creates a strong presumption against guardianship.

Does a guardian have the same rights as a parent?

No. Guardians can make day-to-day decisions but require court approval for major decisions like relocating out of state or certain medical procedures. Parents retain residual rights that guardians do not possess.

How do I choose between seeking custody or guardianship?

Your relationship to the child, the parents’ circumstances, and your long-term objectives determine this choice. For non-parents dealing with unfit parents, guardianship typically presents fewer legal hurdles than pursuing custody.

Conclusion: Making the Right Choice for Your Family

Understanding custody and guardianship in Illinois allows you to make the right choice for your family. The path you select impacts your legal rights and the children’s wellbeing.

At Anderson Boback & Marshall, our family law attorneys provide experienced counsel to determine whether custody or guardianship better serves your family’s needs. From emergency situations requiring immediate action to long-term planning for special needs children, we offer strategic representation at every stage across Cook, Lake, DuPage, and Will counties.

Each Chicagoland county maintains its own procedural requirements and judicial tendencies that affect your case outcome. Our attorneys’ familiarity with specific judges, court personnel, and local rules in each county provides a strategic advantage that makes a critical difference in your custody or guardianship matter.

Contact our office to schedule a confidential consultation about your specific custody or guardianship situation with an experienced Chicagoland family law attorney.

Resources for Guardianship and Child Custody

Cook County

• Family Court Richard J. Daley Center 50 W Washington St, Chicago, IL 60602 (312) 603-6300
• Guardianship Help Desk Richard J. Daley Center, Room 1202 (312) 603-0135

Lake County

• Family Court 18 N County Street, Waukegan, IL 60085 (847) 377-3209
• Guardianship Help Desk 18 N County Street, Waukegan, IL 60085 (847) 377-3260

DuPage County

• Family Court DuPage County Judicial Center 505 N County Farm Rd, Wheaton, IL 60187 (630) 407-8700
• Guardianship Help Desk 505 N County Farm Rd, Room 3500, Wheaton, IL 60187 (630) 407-8813

Will County

• Family Court Will County Courthouse 100 W Jefferson St, Joliet, IL 60432 (815) 727-8592
• Legal Self-Help Center Will County Courthouse, 1st Floor (815) 774-4921

General Resources

• Illinois Legal Aid Online www.illinoislegalaid.org
• Chicago Volunteer Legal Services (312) 332-1624