Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, February 5, 2006

Case Law Development: Probate Courts may Grant Guardianship to Grandparents only if Parent is Unfit

The Illinois Supreme Court reveiwed the legislative history of the probate guardianship statute in light of constitutional standards of Troxel v. Granville and concluded that, "to have standing to proceed on a petition for guardianship under the Probate Act, when the minor has a parent whose whereabouts are known, the petitioner must rebut the statutory presumption that the parent is willing and able to make and carry out day-to-day child care decisions concerning the minor." The case involved a petition for guardianship by Maternal grandparents after their daughter had died.  Father contended that due process required the probate court to incorporate the standing requirements of the Marriage Act, in which third parties have standing to bring custody actions only if they show that the child is not in the physical custody of one of his parents. 

The court noted that the court had agreed with father in precedent that pre-dated amendment of the probate code, but since those amendments had added probate standing requirements the court need no longer look to the Marriage act.  The court contrasted the probate code's requirements with that of the legislation in Troxel and found that the probate standing requirements were consistent with due process and gave sufficient protection to parents.  "By allowing a guardianship petition to proceed to a hearing on the merits over the wishes of a parent only when the parent has been established to be unwilling or unable to carry out day-to-day childcare decisions, the Probate Act respects the superior rights of parents while also insuring to protect the health, safety, and welfare of children."  The court also noted that while the probate statute's language is clear, the Illinois courts have tended to go beyond the language and apply a best interests standard instead.  The court declared "This court's cases refusing to apply section 11-7 as written are wrong and should no longer be followed. Section 11-7 means what it says: fit parents are entitled to custody."

In re R.L.S., 2006 Ill. LEXIS 312  (February 2, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

Custody (parenting plans) | Permalink

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