How to Get Guardianship of a Child in Illinois

Guardianship of a minor is a Probate Division case in Cook County

Guardianship of a minor is governed by Article XI of the Illinois Probate Act, 755 ILCS 5/11-1 and following sections. A minor is anyone under 18. The case is filed in the county where the child lives. In Cook County, the Probate Division hears petitions for guardianship of a minor's person and of a minor's estate. That is a different division from the Domestic Relations Division, which handles parenting disputes between parents, and from the County Division, which hears adoptions.

A guardian of the person makes day-to-day decisions about the child's care. A guardian of the estate manages money or property belonging to the child, such as an inheritance, under court supervision and with a bond. The court can appoint one person for both roles or different people for each.

Guardianship does not end a parent's rights. The Clerk of the Circuit Court explains that, unlike adoption, parents in a guardianship can visit, challenge the guardian's authority and go back to court to regain care of the child, and parents who are able must still help support the child.

Who can petition and when the court can act

Under 755 ILCS 5/11-3, a guardian must be at least 18, a resident of the United States, of sound mind and not an adjudged person with a disability, and must be capable of providing an active and suitable program of guardianship. A person with a felony conviction can be appointed only if the court finds it is in the child's best interests after considering the offense and rehabilitation, and never for a felony involving harm or a threat to a child. A child who is 14 or older may nominate a guardian, subject to court approval.

Parent consent

The key rule is in 755 ILCS 5/11-5(b). The court lacks jurisdiction if the child has a living parent whose rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day-to-day child care decisions, unless:

• the parent voluntarily gave up physical custody of the child;
• the parent received notice of the hearing and did not object at the hearing;
• the parent consents in a dated, notarized writing or in person in open court; or
• the parent cannot consent because of an immigration-related administrative separation, shown by the petitioner's sworn affidavit.

The court also cannot proceed if a court has already appointed a guardian for the child.

When a parent objects

The law presumes that a parent is willing and able to care for the child. A petitioner can overcome that presumption by a preponderance of the evidence. If a parent objects, still has physical custody and is willing and able, a probate guardianship usually cannot go forward. Serious safety concerns may belong in juvenile court through DCFS, and some non-parents may petition for allocation of parental responsibilities when the child is not in either parent's physical custody. Unfitness, discussed on our page about what makes a parent unfit in Illinois, is a separate standard used in adoption and termination cases.

Short-term and standby guardians

A parent can name a short-term guardian without going to court under 755 ILCS 5/11-5.4. The written appointment must be dated, identify the parent, the child and the short-term guardian, and be signed by the parent in front of two witnesses who are at least 18 and are not the person appointed. The short-term guardian also signs.

• The appointment can last up to 365 days, with a longer period allowed for a parent on active military duty.
• If the other parent is living, can be located and is willing and able, that parent must also sign. The form lists exceptions, including when parentage was never established for parents who never married.
• The parent can revoke the appointment at any time.
• A short-term guardian has the authority of a guardian of the person, but not of the child's estate.
• The appointment does not count as consent to a later court guardianship.

A standby guardian is different. A parent designates one in a witnessed writing under 755 ILCS 5/11-5.3, and the court appoints the standby guardian in advance. The standby guardian's authority starts when the parent dies, consents or can no longer make day-to-day decisions, and the standby guardian then has 60 days to petition for appointment as guardian.

Filing, notice and the hearing

1. Gather the child's birth certificate, the parents' names and addresses, any written designation or short-term appointment, and papers from any juvenile, custody, adoption or divorce case.
2. Complete the Cook County Petition for Guardian of Minor and the Probate Division cover sheet. Under 755 ILCS 5/11-8, the petition lists the child, nearest relatives, who has custody, the proposed guardian, the value of any estate and any related court cases.
3. File with the Clerk of the Circuit Court. Filing fees vary, and fee waiver instructions are posted with the Probate Division forms.
4. Complete the background check. Cook County requires the proposed guardian to consent to a background check, including a check of child abuse and neglect records.
5. Give notice. Under 755 ILCS 5/11-10.1, the petitioner gives notice of the hearing, in person or by mail, at least 7 days before the hearing to the child if 14 or older and to the relatives and any short-term guardian named in the petition. Parents are listed as nearest relatives in the petition, so they receive this notice too, and a parent's failure to object counts only after that parent received notice of the hearing.
6. Attend the hearing. The judge reviews the petition and background checks and decides whether the appointment is in the child's best interests. The court may appoint a guardian ad litem for the child.

The Clerk estimates that a case takes about six to ten weeks from filing, depending on notice. Self-represented petitioners can make an appointment with the court's Guardianship Assistance Desk for Minors at 69 West Washington Street.

What a guardian can and cannot do

Under 755 ILCS 5/11-13, a guardian of the person has the child's custody, nurture and tuition, provides for the child's education and acts under the court's direction. The guardian must tell the court the child's current address within 30 days of any move. A guardian of the estate manages the child's property carefully and uses it for the child's support and education as the court directs.

A guardian cannot terminate the parents' rights, and the guardianship ends when the child turns 18. A guardian who wants to make the arrangement permanent would look at adoption, which is a separate case in a different division.

Ending or changing a guardianship

Under 755 ILCS 5/11-14.1, a parent whose rights have not been terminated may petition to end the guardianship. The court must discharge the guardian if the parent proves, by a preponderance of the evidence, a material change in circumstances since the appointment, unless the guardian proves by clear and convincing evidence that ending it would not be in the child's best interests. The court weighs the child's relationship with the parent's household, the parent's ability to provide a safe home, stability, the child's adjustment and the history of visits. If a guardian dies, resigns or is removed, the court may appoint a successor.

A parent can also file an appearance and object while the original petition is pending, or ask the court to limit the guardian's authority.

Common mistakes to avoid

• Relying on an informal note. Schools and doctors may not accept it. Use the statutory short-term form or a court order.
• Skipping the other parent. A short-term appointment needs the other parent's signature unless an exception applies.
• Leaving out related cases. The petition must disclose juvenile, parentage, divorce and adoption cases.
• Assuming guardianship ends parental rights. It does not.
• Forgetting address updates. The court must hear about a move within 30 days.

How Chicago Family Attorneys can help

Chicago Family Attorneys handles family law only from 53 W Jackson Blvd, Suite 752, in the Chicago Loop, serving Cook, DuPage, Will and Lake Counties. Attorney Aaron Korson can review whether guardianship, a short-term appointment or another case fits, prepare the petition and consents, handle notice and appear at the hearing. See our minor guardianship services and grandparent rights pages.

• Full representation. An initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active.
• Limited scope. A flat fee for a defined task, such as drafting the petition for you to file, quoted after a consultation.

Court filing and background check costs are separate. See guardianship of a minor costs. Related reading: grandparent visitation, stepparent and related adoption and voluntary termination of parental rights.