In the September issue of Child Law, Margaret C. Benson describes the shortcomings of current guardianship law and an ISBA legislative proposal designed to address them.
"Traditionally, minor guardianships were fairly simple cases, necessary when parents died or were temporarily unable to care for their children, " Benson writes. "Most cases were uncontested. The statute was designed to be 'easy in, easy out,' with a simplified process and fill-in-the-blank forms.
"About a decade ago, however, everything changed. Probate judges found themselves inundated with increasingly complex and bitter contested minor guardianship disputes, caused by a confluence of factors, including a significant shift in DCFS policy and a seismic cultural change.
The law as written is simply inadequate to the new reality, Benson writes. "In its current form, the Probate Act does not adequately protect the rights of parents or children. For instance, the statute does not contain any provisions for a parent to petition to terminate the guardianship. In addition it uses the undefined term 'fitness' to determine if a guardian should be appointed for a child. This leaves parties, attorneys and judges without guidelines to determine when a guardianship should be granted and when it should be terminated."
In response, Benson and other ISBA members have crafted a legislative proposal that would bring guardianship law up to date. Find out more about it.