Skip to Content

Successful Appeal of Guardianship Order

Wed 12 Jul, 2017 / by / Family Law

We are proud of our results recently in successfully appealing a guardianship case to the Third District Appellate Court. In a published opinion, the justices overturned a ruling in Pekin and in the 

Published 3rd District Opinion (click here for link)

Because the facts are part of the public record, we can share them with you. As with all guardianships of minors, the case is about “B.R.S.,” who was born in 2005 and adopted in 2009 by her paternal grandmother. The grandmother passed away on October 31, 2014. The biological mother, who lost her parental rights in 2009 with the adoption (that’s part of what adoption does), sought to gain guardianship of the child. She told the Court in Pekin that the child was without anyone who could provide for her care. Because of this representation to the judge, she was granted a guardianship.

Of course, that wasn’t true: we represent the aunt (legally, she’s actually also the child’s sister because of the adoption) and her husband, who planned to adopt the child after the grandmother’s passing. To their surprise, after the funeral of the grandmother and at a gathering with all the family present, the former mother showed up with her court order and the police to retrieve the child.

We highlighted to the Court all the things she was required to explain, but didn’t, including telling the Court about who the nearest relatives are, whether the child has income (here, $1800 in social security per month), and the former mother’s occupation as a stripper.

What was confusing is that unlike basically any other area of law, the law on guardianships for minors says that failure to provide notice to relatives is not “jurisdictional.” This is commonly known as due process: when you have a case against someone, whether it’s a divorce, breach of contract, or injury case, you have to serve them notice, or else the court doesn’t have jurisdiction to complete the case. It’s all about notice and giving due process to people who have a right to show up in court and speak their part. The laws on guardianship appeared to have carved out a statutory loophole, in that failure to give notice to important relatives is not “jurisdictional,” and the order for guardianship can still stand even when people are left out of the court process. We didn’t think that was right.

The Appellate Court agreed, saying that the former mother committed fraud. She deliberately left out details that weren’t convenient to her case, and the result is that the Court had an inaccurate impression of the situation. The Appellate Court also agreed that notice is mandatory, despite how the language of the statute reads. They overturned the decision to give the former mother guardianship.

Our clients deserve a huge credit for persevering despite a number of setbacks at the Pekin courthouse, pushing on to the appellate court. Despite that appeals involving children are supposed to happen much more rapidly than other appeals, they endured an extremely anxious period of months while waiting for the appellate process to occur.

The moral of the story: if you have children, always make sure to have a will that clearly names a guardian for them if something happens to you. A little bit of planning can go a long way in the life and experiences of a child.