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Kevin O'Flaherty

In this article, we discuss what rights a parent who is not responsible for the abuse, neglect, or dependency of their child has in Illinois, and answer the following questions:

  • Can the non-abusing parent still keep their child?
  • Does the court have to prove abuse before removing a child from the home?
  • Can the court assign the child a guardian but allow the child to remain with the parents?

The circumstances surrounding child abuse are often murky until a full investigation can be completed. For the sake of the child’s safety, it’s common for the courts to remove a child and place him or her in temporary protective custody before one or both parents are formally charged and convicted of abuse. But what happens if the court finds that only one parent was involved in the abuse, while the other knew nothing of what was happening?

Can The Non-Abusive Parent Still Keep Their Child?

Under Illinois law, if a child is removed from the home due to allegations of abuse by one parent, and there is not enough evidence to prove the other parent unfit or guilty of neglect, the court may allow the child to be returned to the innocent parent. However, if the parents are still living together at any point, then the court may deny the innocent parent custody of the child. Much of the decision to grant custody back to the non-abusive parent will hinge heavily on if the abuse sustained by the child was obvious enough that anyone with regular close contact should have reasonably been aware. If there is any photo evidence or medical records that would suggest the other parent might have known or at least had an idea of the abuse, the court will likely rule that the other parent was neglectful for failing to take action and remove the child from the abusive situation and report it to the authorities. In the end, the court must base its decision on what is in the best interest of the child, regardless of who is at fault.

Does The Court Have To Prove Abuse Before Removing A Child From The Home?

No. If there are multiple occasions of unexplained signs and symptoms consistent with abuse, such as black eyes, bruises about the body, lacerations, broken bones, etc, while the child was in the parent’s custody, the court does not have to find responsibility before removing the child and denying custody. Even if the court is unable to find sufficient evidence to establish that a child’s injuries were intentionally inflicted, the court may still decide that placement outside the home is in the child’s best interest.

Can The Court Assign The Child A Guardian But Allow The Child To Remain With The Parents?

Normally, when a child is placed into protective custody outside the home, the court should grant guardianship or legal custody to whomever the child is placed with. The same is true if the child is placed in the care of an agency. However, the court can also—without first finding the parent unfit—assign guardianship of a child to a DCFS agent, while the child remains at home in the custody of the parents. In this situation, the parents rights and responsibilities are temporarily restricted and the guardian assumes a majority of the parental rights while also acting as a form of supervision.

Temporary custody, removal of parental rights, and the process for reinstatement of parental rights can be a complex legal endeavor. The bottom line, any decision made by the court must be in the best interest of the child. 

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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