Seeking the Appointment of a Legal Guardian for a Minor Child

 Posted on August 22, 2014 in Family Law

A child’s parents are not always the people who gave birth to him. In fact, sometimes a child’s “parents” are not actually his parents at all, but are actually his legal guardians. While a legal guardian may look like a parent and act like a parent, the law confers a different status.

For whatever reason, some parents are unable to care for their children. When that happens, courts have various means of transferring legal authority to someone who does have that capability. Legal guardianship is one such process. Before appointing a permanent legal guardian, the court might appoint a guardian ad litem (GAL) who will be tasked with investigating the relevant facts. The GAL’s investigation will likely focus on the family’s situation and the parents’ ability – or inability – to care for their child. After the GAL investigates, he or she will make a recommendation to the court based on the child’s best interests.

The appointment of a permanent legal guardian begins with a petition filed in court. The petition must identify the minor child, the parents, the siblings and the proposed guardian. Additionally, the petition must explain why a legal guardianship is necessary. The facts will vary based on the case, but a typical reason might be that the parents lack the financial ability to care for their child. Notice of the petition must be provided to the parents and to any adult siblings. Notice must also be provided to the child, if he or she is at least 14 years old.

The Best Interests of the Child

The law presumes that it is in a child’s best interests to be with his or her parents. Thus, the proposed guardian has the burden of proving that this is not the case (if the parents do not consent to the guardianship). Ultimately, the court will make a determination based on what is in the child’s best interests. The GAL’s investigations will have some bearing on that decision. Other factors that the court will consider include:

• The wishes of the child, especially if the child is 14 years old or older;
• The child’s relationship with his or her parents and siblings;
• Whether the guardianship would require the child to move;
• How well adjusted the child is to his or her current home, school and community;
• The parents’ and potential guardian’s respective financial situations;
• The mental and physical health of all involved parties
• Whether there is a history of or potential for abuse in either the child’s current home or proposed new home; and
• Whether the proposed guardian would facilitate a relationship between the child and his or her parents.

If the court approves the legal guardianship, the guardian will assume the same rights and responsibilities as if he were the natural parent.

If you are seeking the legal guardianship of a child, contact one of our experienced Illinois family law attorneys. We can help you make the case that having you as the legal guardian is in the child’s best interests. Contact us today for a consultation. We can assist those in the St. Charles area.