Guardianship for a child generally becomes necessary when the child’s parents are no longer able to care for their child on a long-term basis. When a child no longer has a parent who can make decisions for them, an adult needs to be appointed as the caregiver and decision-maker for that child.
Without the authorization granted by a guardianship, caregivers often find they are unable to access medical care, enroll the child in school, or make other critical decisions for that child.
There are also times when the parent cannot be physically present to care for the child and may not be an appropriate caregiver, such as when a parent is incarcerated.
The purpose of guardianship is to ensure that the child has an appropriate and willing caregiver in the absence of their parents. Unlike adoption, guardianships are not permanent.
They do not dissolve the parents’ parental rights, and they can be dissolved if the parent or parents are able to show that they are now able and willing to care for the child.
Guardianships end when the child turns eighteen and do not convey any inheritance rights, unlike an adoption. Under Illinois law, guardianship of a minor is governed by the Illinois Probate Act (755 ILCS 5/11-1 et seq.).
Key Takeaways
- Guardianship does not terminate parental rights. Parents can petition to dissolve a guardianship if circumstances change.
- Illinois recognizes three types of guardianship: plenary, standby, and short-term. Each has different requirements and levels of court involvement.
- A plenary guardian can only be appointed by a judge. Standby and short-term guardianships can be established in writing without court approval.
- The petitioner must provide the parents with notice of the guardianship hearing at least three days before the hearing date.
- Children aged 14 and older must receive notice and may provide input on who serves as their guardian.
- Courts are significantly less likely to dissolve a long-standing guardianship if doing so would disrupt the child’s stability.
How to Establish a Guardianship for a Child
For every child, there are two guardianship roles: guardian of the person and guardian of the estate. One person can hold both roles, but those roles can also be divided between multiple adults.
The guardian of the person is responsible for making decisions for the child in the areas of care, support, education, and medical treatment. The guardian of the estate is responsible for any money or property belonging to the child.
Generally, guardians are family members or friends of the child who have an already established relationship with the child. In some circumstances, the guardian may already have been acting as a caregiver and is seeking to formalize the situation through the court.
For a comparison of how guardianship differs from custody (now called allocation of parental responsibilities in Illinois), see our guide on custody vs. guardianship in Illinois.
Petition for Guardianship of a Minor in Illinois
In order to become a child’s guardian, the adult seeking guardianship must file a Petition for Guardian of a Minor stating both why the child needs a guardian and why this particular adult would be appropriate as guardian for the child.
The petitioner must meet the following qualifications:
- Be at least eighteen years old
- Be a resident of the United States
- Be of sound mind
- Not be legally disabled
- Not have a felony conviction that involved harm or threat to a child
Types of Guardianships in Illinois
Illinois recognizes three types of guardianships: plenary, standby, and short-term.
Plenary Guardian
A plenary guardian assumes that role for the long term. A plenary guardian can only be appointed by a judge, and only under the following circumstances:
- The parents are deceased
- The parents are unable or unwilling to make daily decisions for the child
- The parents voluntarily left the child with another adult and did not return
- The parents agree to the guardianship
- The parents are detained, arrested, removed, or deported because of immigration issues
Once a guardian is appointed, that person cannot give up that role unless a judge rules:
- That there is a parent willing or able to resume caring for the child, or
- Another individual is willing to assume guardianship of the child.
Once the child turns eighteen, the guardian no longer has formal responsibility or authority for the child.
The individual petitioning for plenary guardianship must provide information to the court about the whereabouts of the parents. The guardian must also provide the parents with notice of the time and place of the hearing so that the parents can object to the guardianship if they choose to do so.
If there is an able and willing parent whom the court deems appropriate, guardianship should not be granted because the petitioner has not made a sufficient showing that guardianship is necessary.
Standby Guardian
A standby guardian is someone selected by the parent to become a guardian if a parent or current guardian is unable to care for the child due to illness, death, or long-term separation from the child. A standby guardian does not require a judge’s approval, but there must be a written designation witnessed by two other people.
A standby guardian’s role becomes active when:
- The parent or legal guardian dies
- The parent or legal guardian consents
- The parent or legal guardian can no longer make or carry out daily child care decisions for the child
- The parent or legal guardian is detained, arrested, removed, or deported because of immigration issues
Short-Term Guardian
A short-term guardian can be appointed when a parent knows they will be unable to make daily decisions for their child for a limited period and is willing and able to resume responsibility when that time expires.
One example would be a parent in the military who is going to be deployed. That parent could name a short-term guardian for the duration of their deployment, which would expire once the parent returned home and could resume responsibility for the child.
Like a standby guardian, a short-term guardianship does not require a judge’s approval but must be in writing and witnessed by two other people. Under the Probate Act, the appointment extends for up to 365 days unless the document specifies an earlier termination date.
The short-term guardianship also expires when the parent returns home and is able to resume responsibility for the child.
Children Age 14 and Over May Provide Input
Children over the age of fourteen must receive notice when someone is seeking guardianship of them and can provide input to the judge regarding who they want as their caretaker. If a Guardian ad Litem has been appointed, the child may share their preferences with that attorney as well.
This can play a significant role in who is appointed as guardian if there are multiple individuals petitioning for guardianship of the child.
Common Issues That Can Arise in Illinois Guardianship Cases
The following issues frequently arise in guardianship cases in Illinois family courts.
When a Parent Seeks to Terminate a Guardianship
Because guardianships are not permanent and can be dissolved, parents often operate under the incorrect assumption that once they say they want the guardianship to end, it will be dissolved.
Instead, what often happens is that the judge will require the parent who wants to resume care and control of the child to show that they are able to resume that responsibility and that returning the child to the parent is in the child’s best interests.
Once the guardianship is in place, the judge will take a hard look at why the guardianship was ordered in the first place, the parent’s involvement with the child since the guardianship was ordered, and whether returning to the parent’s care is what is best for that child. The judge will also consider how long the child has been with the guardian.
Judges are significantly less likely to dissolve a long-standing guardianship to avoid instability and disruption in the child’s life, as that is not seen as being in the child’s best interests.
The Role of a Guardian ad Litem in Guardianship Cases
The judge may appoint a Guardian ad Litem (an attorney who represents the best interests of the child) to evaluate the parent’s current situation and the child’s current situation.
That can involve the Guardian ad Litem conducting an investigation and giving a recommendation as to whether dissolving the guardianship is what is best for the child. It is critical for parents to know that even though a guardianship can be dissolved, it does not mean that it will be dissolved.
When More Than One Person Seeks Guardianship
Another issue that arises is how the courts handle a situation where multiple people have petitioned for guardianship of a child. When that happens, the judge will consider all of the petitions and make a determination as to who is most appropriately suited for that responsibility.
Often, the judge will appoint a Guardian ad Litem to conduct an investigation into the families and assist in selecting one guardian. There is also the possibility of dividing up the roles.
In one case involving two sets of grandparents petitioning for guardianship after both parents had passed away, the court allowed a child over the age of fourteen to have significant input as to where he lived and who served as guardian.
Ultimately, the court divided the guardianship roles between the grandparents to keep both families actively involved in the child’s life. For more on how grandparents can seek guardianship or parenting time, see our article on grandparents’ rights in Illinois.
Notice Requirements for a Guardianship Petition
An individual wishing to assume guardianship of a child must provide notice to the parents or provide confirmation to the court that the parents are deceased.
Notice of a guardianship petition is more informal than service in most family law cases. The petitioner only needs to provide the parents with notice of the time and place of the hearing on the guardianship, either in person or by mail, no less than three days before the hearing.
Failure to notify the parents of the petition for guardianship could be grounds for the guardianship to be dissolved or even voided.
When a Guardianship Is Vacated for Lack of Notice
In one contested matter, a guardianship was voided when the court determined that a parent had not received proper notice of the hearing and that material information had not been disclosed to the court.
Without notice of the hearing, the parent was unable to object to the guardianship or inform the court of their willingness and ability to resume care.
The court ruled that the omissions constituted a fraud upon the court, and the guardianship was vacated.
This case serves as a reminder that guardianship should only be utilized when a child truly needs a caregiver, not when someone simply wants guardianship. Illinois courts recognize the fundamental importance of the parent-child relationship.
Talk to an Illinois Guardianship Attorney
Anderson Boback and Marshall are family law attorneys with extensive experience handling guardianship and contested custody matters throughout Cook, DuPage, Lake, and Will Counties.
Whether you are a grandparent seeking guardianship of a grandchild, a parent trying to dissolve a guardianship, or a family member facing a contested petition, our attorneys can help you understand your options and protect the child’s best interests.
Contact our Chicago child guardianship lawyers to schedule a confidential consultation.
Protecting a Child Through Guardianship in Illinois
Guardianship exists to protect children when their parents cannot. Whether you are stepping in for a family member or fighting to regain custody of your child, understanding how guardianship works in Illinois is the first step.
The process involves real legal requirements, and the outcome depends on the specific facts of your situation. An experienced family law attorney can help you navigate the petition process, respond to contested proceedings, or plan ahead with a standby or short-term designation.
Do you need to establish or contest a guardianship?
Our attorneys represent families across Cook, Lake, DuPage, and Will Counties in guardianship matters. Whether you are filing a petition, responding to one, or seeking to dissolve an existing guardianship, we can help. Contact Anderson Boback and Marshall to schedule a confidential consultation.
Frequently Asked Questions About Guardianship of a Minor in Illinois
Can a Parent Terminate a Guardianship at Any Time in Illinois?
No. A parent cannot automatically terminate a guardianship simply by requesting it. The parent must file a petition with the court and demonstrate that they are now able and willing to resume care of the child. The court will evaluate whether ending the guardianship is in the child’s best interests before making a decision. Courts are particularly cautious about dissolving long-standing guardianships because of the disruption it can cause in the child’s life.
How Long Does Guardianship of a Minor Last in Illinois?
Guardianship of a minor typically lasts until the child turns 18 unless it is terminated earlier by court order. A guardianship may also be dissolved if a parent successfully petitions the court and proves that they are able to resume responsibility. Short-term guardianships have a maximum duration of 365 days under the Probate Act.
Does Guardianship Terminate Parental Rights?
No. Guardianship does not terminate parental rights. Unlike adoption, the child’s legal relationship with their parents remains intact. Parents retain the right to seek dissolution of the guardianship if their circumstances change, though the court must find that returning the child is in the child’s best interests.
What Is the Difference Between a Plenary Guardian and a Short-Term Guardian?
A plenary guardian is appointed by a judge and usually serves on a long-term basis when parents are unable or unwilling to care for the child. A short-term guardian is designated by a parent in writing for a limited period, such as during military deployment or medical treatment, and does not require court approval. Short-term guardianships last up to 365 days.
What Happens if a Parent Was Not Given Notice of the Guardianship Hearing?
If proper notice was not provided, the guardianship order may be challenged and potentially vacated. Illinois law requires that parents receive notice of the time and place of the guardianship hearing at least three days before the hearing date. Failure to provide notice can be grounds to dissolve or void the guardianship entirely.
Can More Than One Person Be Appointed Guardian of a Child?
Yes. The court may divide responsibilities by appointing one person as guardian of the person and another as guardian of the estate. In contested cases, the court will determine what arrangement best serves the child’s interests. The court may also appoint a Guardian ad Litem to investigate and make a recommendation.
Does a Child Have a Say in Who Becomes Their Guardian?
Children aged 14 and older must receive notice of guardianship proceedings and may express their preference to the court. While the judge makes the final decision, the child’s wishes can carry significant weight, especially in contested cases where multiple people are seeking guardianship.
