We get a lot of calls about people who are wondering about (a) getting their kids back after consenting to putting them in the care of a relative; (b) obtaining care of a relative or friend’s kids when they aren’t being cared for properly; or (c) whether an adoption or guardianship is their best option. Even for lawyers and judges, the answer is not easy or clear.
Guardianships are generally an area of law governed by the Probate Act. It says in Section 11-5 (755 ILCS 5/11-5) that a guardian can be appointed for a child whose parents are living but unwilling or unable to act as parents. The problem is that it doesn’t tell us a whole lot more – such as when guardianships should end. For example, what happens when a parent becomes willing and able to care for the child? Well, the Act says a guardian can be removed for a long list of reasons (Full list here), and a lot of these are more suited to handling of money (which certainly is a reason for guardianship, but not in the context we’re talking about here). So practically speaking, we’re left with #10: “there is other good cause.” It’s not helpful.
Judges deciding on cases have tried to hone this standard of “good cause.” Recently, a decision occurred by our Supreme Court that calls all of these decisions into question. When looking at terminating a guardianship, judges over the years had developed a framework, borrowing ideas and building off of prior cases so that we had some expectations about how to show “good cause.” All of this may have gone out the window.
Initially, a quick primer on the fundamentals helps. Overall, a guiding force in guardianships has been what’s commonly known as the “Superior Rights Doctrine.” This comes from the Probate Act: “If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education.” In other words, a natural parent has a stronger claim for custody than anybody else. Therefore, to create a guardianship in the first place, a guardian has overcome the superior rights of the parent(s) by proving them unfit, unwilling, or unable to act. Guardianship should also be in the child’s best interest. This is fairly similar to an adoption case: first, prove the parent(s) unfit, and then show the child’s best interest favors the guardians.
So, the case mentioned above, a 2006 Supreme Court Ruling, ruled that you lack standing to bring a guardianship case unless a parent or parents are proved unfit first. This is In re R.L.S., 218 Ill.2d 428. But what about guardianships created by consent? In these cases, parents are not proven unfit, but rather they have agreed to place their children with a guardian – often with some sort of understanding that it would not be forever.
This creates uncertainty and remains unresolved right now in Illinois law. If you’re a parent who agreed to guardianship, what do you need to show to stop that guardianship?
Previously, courts would say that even for guardians who have had the children for a period of time, the guardians still had to show reasons why the parent’s superior rights should be overcome. For a guardianship created by consent and where the guardian has maintained consistent care, custody, and control of the child, it’s up to the parent to show what they’ve accomplished or changed that requires ending the guardianship. Focus is typically on the biological parent’s changes in their life, as opposed to changes in the guardian’s circumstances. For example, when a guardian moved to Texas with the children, this wasn’t enough: the guardianship remained in place, and they moved. In re Estate of KES, 347 Ill App 3d 452, 463, 807 NE2d 681, 689 (4th D 2004).
*Of course, at least one court has disagreed, saying that a change in a natural parent is not sufficient on its own to be “good cause” for removing a guardian (Brown’s Estate, 103 Ill.App.3d 470). When people get frustrated by not getting a clear answer from attorneys as to the chances of their case, this is why they so often get those answers.
Those who have familiarity with custody cases should note that the change in circumstances for guardianships is shown by a preponderance of the evidence. This is different from custody trials, where non-custodial parents have to show a substantial change in circumstances by “clear and convincing evidence,” which is a higher showing to meet with evidence. Thus, people considering guardianships might be well advised to recognize that it’s relatively easier for parents to change the guardianship arrangement, compared to other areas of the law.
So what’s the takeaway? First of all, the state of guardianships in Illinois is unclear when we’re taking about how to end them. There’s arguments both ways. For those comparing guardianships to adoption, the route of adoption certainly would offer far greater guarantees of finality and stability.
For those facing guardianship arrangements, they might take comfort in the fact the standards for ending them may be loosening, or at least giving them more of a foothold to make their arguments than existed previously. Under the new Supreme Court decision, they could argue that all they need to do is show that they are fit, willing, and able – not that a change in circumstances has necessarily occurred, or even that the best interests of the child should be considered.
The gaps in the guardianship statute and in the case law create problems, most of all, for children who have guardians. Secondarily, it affects the guardians themselves, and even for biological parents seeking to get their kids back.
So we hate to say it, but if you have a guardianship question: it’s complicated. This is why we ask you to come in, sit down for an hour, and explore the options.