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How Do Courts Determine Who Will Be the Guardian of a Minor in Illinois?

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
January 6, 2020

In this article, we will answer, “How do courts determine who will be the guardian of a minor in Illinois?” Our Illinois guardianship attorneys will answer:

  • What is a guardian?
  • Who can be a guardian in Illinois?
  • What are the types of guardianship in Illinois?
  • What can a guardian decide in Illinois?
  • Why would I have to become my child’s guardian?

What Is a Guardian?

In some cases, a minor may need to live with a legal guardian other than their parents. This guardian assumes most of the responsibilities a legal parent has, including providing food and housing. Essentially, a guardian takes care of a child’s needs when a parent is unable to.

Who Can Be a Guardian in Illinois?

In Illinois, a person who wishes to become a guardian must meet the following criteria:

  • Be 18 years of age
  • Be a resident of the United States (though some courts may appoint undocumented immigrants)
  • Be of sound and conscious mind
  • Not be legally disabled (blindness is not a disqualification for becoming a guardian)
  • Not have a felony conviction involving threat or harm to a child

What Are the Types of Guardianship in Illinois?

There are three different types of guardianship in Illinois.

A plenary guardian is a long-term guardianship that requires a court case to establish. The following scenarios may require a plenary guardianship.

  • Parents of a minor pass away
  • Parents are unable or unwilling to care for the child
  • Parents voluntarily leave child with another adult and do not return
  • Parents agree to the guardianship
  • Parents are arrested, removed, deported, or detained

With this type of guardianship, the guardian cannot give up responsibility of a minor, unless a judge determines that the child’s parent can care for the child again or if someone else is willing to become the new guardian. This type of guardianship automatically ends once the child turns 18.

A standby guardian is similar to a plenary guardian in that it is permanent. It differs though in that this type of guardian is decided by the parents of the minor in need of a guardian. A designation must be in writing and witnessed by at least two people who are at least 18 years old. A standby guardian can also be designated in a will.

A short-term guardianship does not require a court case. This type of guardianship lasts for one year or less and the parent chooses the short-term guardian. While court is not necessary, the agreement must be in writing.

What can a guardian decide?

The answer to this question depends on what (or who) the guardian is responsible for.

If the guardian is responsible for a minor, they have broad power to make decisions for the child. They uphold physical custody of the child and must provide food, shelter, education, and medical care. They can also consent to the minor’s medical treatment, desire to enlist in the armed forces, and marriage.

If the guardian is responsible for the estate of a minor, they can only make decisions about the minor’s money and property. The funds may only be used for the benefit of the child.

What is the Process for Appointing a Guardian for a Minor in Illinois?

In order to determine who will be appointed as guardian of a minor, the court will hold a hearing at which the prospective guardian must demonstrate to the court that the appointment of the prospective guardian will be in the best interests of the child.  If there is a dispute as to who will become guardian to the child, all parties will have the opportunity to present evidence to the court to support their arguments.  

The court will usually appoint a guardian ad litem in guardianship cases.  A guardian ad litem is an attorney responsible for representing the interests of the child, investigating the child’s best interests, and reporting to the court with a recommendation as to the situation that will be best for the child.  

What Factors do Illinois Courts Consider When Appointing a Guardian for a Minor?

Courts will consider all relevant facts to determine the best interests of the child when determining guardianship.  These include:

  • The stability of the home of the prospective guardian; 
  • The prospective guardian’s relationship to the child; and 
  • The prospective guardian’s track record of financial responsibility. 

Why would I have to become my child’s guardian?

If your child is included in someone’s will, you may need to become their guardian. This will make you legally liable for inherited assets and their management. Without the obligations guardianship entails, the assets could be mishandled.

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