Issues that Can Arise in Guardianship Cases

There are a number of common issues that arise in guardianship cases. From the termination of the guardianship by a parent who wants to resume responsibility for a child, but the guardian is not in agreement with relinquishing the guardianship to more than one party seeking to be a child’s guardian, read on to see how Illinois family courts have addressed these issues.

Guardianship Cases When a Party Seeks Termination of a Guardianship

Because guardianships are not permanent and can be dissolved, parents often operate under the incorrect presumption 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.

Appointment of a Guardian Ad Litem

The judge or an appointed Guardian ad Litem (an attorney who represents the best interests of the child) will consider the parent’s current situation, and the child’s current situation, to determine what is best for the child. 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.

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.

Victory for Long-term Guardian Opposing Termination of Guardianship

A few years ago, I represented a long-term guardian who was fighting a petition to have a guardianship dissolved. The petitioner was the mother, who had previously agreed to the guardianship when the child was around six months old. The child was thirteen years old when the mother filed her petition. During that time, the guardian and the child had moved to Las Vegas, had lived there for a few years, and was enrolled in school there. Dissolving the guardianship would have meant moving the child back to Chicago to live with a parent who had essentially never cared for him and leaving behind the woman who had raised him. In that case, the Guardian ad Litem and the judge both found that keeping the guardianship in place was in the child’s best interests in order to preserve stability in his life and maintain his bond with his guardian, who had been his primary caregiver throughout his life.

Guardianship Cases When More than One Person Seeks Guardianship of a Child

Another important issue to consider is how the courts will handle a situation where multiple people have petitioned for guardianship of a child. What that happens, the judge will consider all of the petitions and will 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. Alternately, there is also the possibility of dividing up the roles, as happened in another recent case that I handled.

A Child is Given Input in the Guardianship Decision

In that situation, two sets of grandparents were petitioning for guardianship of their grandson. Guardianship was necessary in this case as the child’s parents had both died, leaving him without a legal guardian or decision-maker. The dispute between the grandparents was largely about where the child lived, specifically whether he would return to the area where he had grown up or continue to leave out of state where he had been placed with an uncle by one set of grandparents. In this case, the judge appointed a Guardian ad Litem who met with the child, who was over fourteen, the allowed the child to have significant input as to where he lived and who he lived with. The child was also given the ability to choose where he wanted to live, as well as who he wanted as his guardian. Ultimately, decided that he wanted one set of grandparents as guardians of his person and the other set of grandparents as guardians of his estate to keep both families actively involved in the child’s life. Both sets of grandparents accepted their respective designations out of a strong desire to honor the child’s wishes and to be sure that the child was able to relationships with both sides of his family, which was especially important in light of the loss of the child’s parents.

Guardianship Cases When the Notice of Petition for Guardianship of a Minor is in Dispute

Another critical issue in guardianship is whether the parent has been provided with notice of the Petition for Guardianship of a Minor. An individual wishing to assume guardianship of a child must provide notice to the parents or provide confirmation to the court that the parent, or 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 parent(s) with notice of the time and place of the hearing on the guardianship, either in person or by mail, no less than seven days before the hearing. So, while a petitioner can choose to have the parent formally served with those papers, all the petitioner has to do is mail a letter with the time and place of the hearing to the parent’s last known address seven days before the hearing and that will provide sufficient notice. Failure to notify the parent(s) of the petition for guardianship, however, could be grounds for the guardianship to be dissolved, or even voided.

Guardianship Voided When Father Did Not Receive Notice

Another guardianship case that I handled for a father was voided for that reason, among others, when the judge ruled that the short-term guardian, the children’s grandmother, and her attorney had failed to provide the father with any notice of the hearing. This was especially damning because the father and grandmother were in daily contact regarding the children.

In that case, the father had given short-term guardianship to his young children’s maternal grandmother after the death of his wife to pursue a three-month intensive job training. The training schedule was so long that it would have made it impossible for him to care for his young children as a single father and complete the job training. The father allowed the children to go with the grandmother on a short-term basis, with the understanding that they would move back in with him after he completed his training. Once training was finished, my client contacted the grandmother to let her know that he was ready to resume caring for the children.

However, instead of returning the children to their father, the grandmother secretly filed for plenary guardianship and failed to disclose to the judge that the father was willing and able to resume care and control of the children. She also omitted that the father had repeatedly informed the grandmother that he was ready to resume daily responsibility for the children and that he had repeatedly requested that she return them to his care. The grandmother and her attorney also failed to provide my client with any notice of the hearing. Without notice of the hearing, the father was unable to object to the guardianship and inform the court of his efforts to regain care and control of his children, which resulted in the guardianship being granted.

Motion to Vacate Letters of Guardianship

At a hearing on my motion to vacate the letters of guardianship, these omissions were seen as so fundamental that the judge in that case not only voided the grandmother’s guardianship over the children that the judge ruled that the grandmother and her attorney’s actions and omissions constituted a fraud on the court. Happily, my client was reunited with his children and able to fly home with them the day after the hearing.

This case was an important cautionary tale about what can happen when someone wants guardianship of a child, as opposed to the child needing a guardian. Here, the grandmother was motivated by her desire to keep the children, not because there was an actual need for a guardian. When the court realized the grandmother’s true motivation, the guardianship was immediately voiced.

Guardianship Cases and Importance of Parent-Child Relationship

It is critical when petitioning for guardianship that the potential guardian is making this request honestly, and in good faith, rather than out of a desire to keep the children. The law recognizes the fundamental importance of the parent-child relationship, and guardianship should only be utilized when a child truly in need of a caregiver.