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Grandparents & Child Custody

In recent years there has been increased awareness of grandparents who are raising their grandchildren. There can be many reasons why grandparents become custodians. There may have been tragedy or trouble involving the child’s parents, including death, illness, incarceration or severe substance abuse problems. In other cases, the parent of the grandchild may request the help of the grandparent, or sometimes, a parent’s abuse or neglect of the child forces the State to place the child with the grandparent or other family member. In other instances, the grandparent may feel that they must take action to remove the child from the parent for the safety of the child.

While caring for grandchildren may start out as an informal agreement, there are many reasons why the custodial relationship should be formalized, through legal proceedings, such as guardianship or legal custody. Such legal status may be necessary to provide consent to medical care or to obtain financial assistance. In addition, a court order for custody or guardianship may well be necessary if you have particular concerns about a parent:


  • Becoming unable to care for the child;

  • Taking the child away from you without your consent; or

  • Coming in and out of the child’s life disrupting the routine that you provide.


This section includes brief information about guardianship and custody. It is highly advisable that you consult an attorney regarding your specific situation.

Guardianship of Children

Illinois law permits you to bring a legal proceeding to become a child’s legal guardian. If the guardianship is appropriate and the right person is available to act as guardian, a guardianship can benefit a minor.

ADVOCACY TIP

Be wary of school officials who tell you that you must obtain a guardianship to enroll your grandchild in school. This information is incorrect. Under Illinois law, no guardianship or custody order is necessary to enroll a child in the school district where you live as long as the child is living with you (and spending nights with you) and you either receive public assistance for that child or you have accepted responsibility for the child. However, you must show that the child is not living with you solely because you want the child enrolled in your school district.

Reasons for Guardianships of Minors

As a general rule, only a child’s parents have the legal right to make decisions concerning the care and upbringing of that child. Legal guardianship of a minor is one process for granting that legal authority to someone other than the child’s parents. This is usually done only in cases where the child is not in the care of a parent because the parent is unable to care for the child.

How to Obtain Guardianship of a Minor

If the parents are unable to care for the child, you must file a petition in court. The petition will identify the child, the child’s parents and siblings, the proposed guardian, the child’s financial circumstances and the reasons why a guardianship is needed. You must send a notice of the court hearing to the child’s parents and adult siblings and to the child, if he or she is over 14. At the court hearing, the judge decides whether the guardianship is in the child’s best interests. The law presumes that the child is best placed with a parent, so you would have the burden to prove otherwise if a parent objects to the guardianship.

The judge may appoint a guardian ad litem (GAL) to investigate the facts of the case, and decide what would be in the child’s best interests. The GAL makes a report to the judge about who should be given the responsibility for the care of the child. The judge considers the GAL’s opinion in making the final decision.

The Duties of the Child’s Guardian

The legal guardian of a child has the same responsibilities as though he or she were the child’s natural parent. The extent of these duties will vary depending on whether the court appoints the person as a “guardian of the person” or a “guardian of the estate,” or both. Under both types of guardianship, you are required to report to the court, generally once per year, regarding the child’s well-being and/or finances.

A “guardian of the person” creates a duty to feed, clothe, and house the child, and to make decisions concerning the child’s education and health care. It does not allow you to control the minor child’s income or assets.

A “guardian of the estate” creates a duty to make decisions regarding the child’s income or assets and to properly protect and/or invest that income.

The guardianship will remain in effect until the child reaches age 18, unless it is changed by court order before that time.

Petition for Custody

There may be situations where a grandparent will not be able to obtain consent from the parents for custody and may want to formalize a custodial relationship with a court order for custody. This type of custodial arrangement provides for stability of the minor child. Once custody is awarded, it is difficult to change unless there are extraordinary circumstances.

To obtain such a court order, the grandparent must file a Petition for Child Custody. However, a grandparent has “standing” to file such a petition only in limited circumstances. “Standing” refers to the legal right to initiate a legal proceeding. At the present time, a grandparent has “standing” to file a petition for custody only under two different sets of circumstances:

Child Not in Physical Custody of Either Parent

First, a grandparent has standing to file a Petition if the child is not in the physical custody of one of his parents. In that case, the grandparent may file a petition for custody of the child in the county in which the child is permanently resident or found.

In this situation, you must show that the parents have voluntarily given up their rights and the proposed custodial arrangement is in the child’s best interests. The factors establishing whether or not the parents have “voluntarily given up” their rights are:


  • The length of time the child has lived away from the parents;

  • The degree of parental obligation assumed by the parents; and

  • The level of interest shown by the parents.


Grandparent Filing Petition is a Parent of Child’s Deceased Parent

Second, a grandparent has standing to file a Petition when one of the parents is deceased, and the grandparent filing the Petition is a parent or stepparent of the deceased parent. However, one or more of the following conditions must have existed at the time of the parent’s death:


  • The surviving parent had been absent from the marital home for more than one month without the deceased spouse knowing the whereabouts of the surviving parent;

  • The surviving parent was in State or federal custody; or

  • The surviving parent had received supervision for or been convicted of any Illinois crime involving bodily harm directed towards the deceased parent or the child or of violating an order of protection entered under the Illinois Domestic Violence Act for the protection of the deceased parent or the child.


If the court rules favorably on your petition, the court will enter an order that awards you legal custody of the child or children.

Juvenile Court

Any adult or agency can file a petition alleging that a minor child is either:

  • Abused;

  • Neglected; or

  • Dependent and in need of the court’s supervision.


  • If the allegations are proven, the juvenile court has the legal authority to place the minor child with a relative or other third party, including the grandparents. The caretaker may be designated as either the legal custodian or guardian of the person of the minor child. Because the goal of these types of proceedings is reunification of the family, the natural parent may petition the court for legal custody of the minor child at any time unless his or her parental rights have been terminated.

    Adoption

    In some cases, grandparents may seek to adopt their grandchild or grandchildren. This is the most final of the custodial arrangements because the grandparent assumes all the duties and obligations of the parent, including the financial obligations. A natural parent can consent to the adoption. The consent must be in writing and before the judge.

    If the natural parent will not consent, you may seek to terminate the parent’s rights by asking the court to find that the parent is unfit. You should be aware that a contested adoption case could be quite costly.

    Article Source: http://freelegalinformation.info

    Published by Illinois Legal Aid

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