Other areas of Family Law that Crosby & Crosby LLP can attend to are Adoptions and Guardianships. Both Adoptions and Guardianships are unique opportunities for families to grow and care for children who need it the most. Taking on the responsibility for a child through an Adoption or a Guardianship is one of the most honorable endeavors a person can pursue and it is our absolute pleasure to assist clients who wish to give a child a better home.
Adopting a child is an enormous responsibility that should never be taken lightly. Adopting a child means that you, the parent, will bring a child into your family and treat them as though they are your own flesh and blood. You will be asked by the Court to prove that you have the ability, both financially and personally, to take on the responsibility of a new child and provide for them a loving home. There are several categories of Adoption that can be pursued. Most commonly those are:
Contested Adoption of a Family Member: A Contested Adoption of a Family Member is an action taken in Court when the petitioner (the person seeking to Adopt) requests that the Court remove all legal rights from the biological parents of the Child. To seek an Adoption of a Family Member means that you will be asking the Court to take away all legal rights from a family member of yours. Often, this leads to confrontation. If you believe that a family member of yours is incapable of caring for their child or children, you may want to seek an Adoption. But just because you believe your family member is incapable, does not mean that your family member agrees. When engaging in a Contested Adoption of a Family Member, you will be taking that child’s parents to Court and seeking a Court Order finding those parents to be “unfit” to parent their child or children against their wishes. The parents of that child or children will have an opportunity to challenge your claims in a Court Hearing. They will seek to prove that they are capable, while your attorney will seek to prove that they are not. Often, in these types of Adoptions, the Court will order a Guardian Ad Litem be appointed to evaluate whether this is a wish move for the children’s sake. A Guardian Ad Litem is a Court appointed attorney whose job is to investigate whether or not your claims are correct and to make a report to the Judge one way or the other. To learn more about Guardian Ad Litems, click here. After a hearing on the parents’ fitness, your attorney will then be required to prove that you are a fit parent. This means that you will essentially have two cases to prove. If successful in proving both of these cases, you will succeed in the Adoption and a Court Order will be issued stating that the parents are not fit to be parents and that you are now the Adoptive Parent.
Contested Adoption of a Non-Family Member: A Contested Adoption of a Non-Family Member adds an additional step to those listed above. Not only will your attorney have to prove that you are a fit parent and the biological parents are unfit, but you will also open yourself up to what the Courts call a “Home Study.” As we mentioned above, the Courts often appoint a Guardian Ad Litem in Adoption cases. This person is an attorney whose job it is to evaluate what is right for the children and to make a recommendation to the Court. When Adopting a Non-Family Member, the Court will also Order that a “Home Study” be done to evaluate whether your home is sufficient to house a child or another child. This Home Study will be conducted by a licensed Child Welfare Agency. That agency will send an inspector to your home to conduct their research. If that Home Study is reported back to the Court in a favorable manner, you will then need to prove that you, personally, are a fit parent and that the biological parents are not. If you are able to do this, the Adoption will be Ordered by the Court.
Uncontested Adoption of a Family Member: An Uncontested Adoption of a Family Member is likely to be the easiest route to Adoption available to you. To proceed with an Uncontested Adoption of a Family Member, your attorney will need to obtain a signed form called a “Waiver and Consent” from the biological parents. This is a form that the biological parents will willingly sign. By signing this, the child’s biological parents will be Consenting to the Adoption and Waiving their right to contest it. If this is done, a Guardian Ad Litem will still likely be appointed to evaluate whether it is in the child’s best interest that you become the Adoptive Parent, but will not evaluate the fitness of the biological parent. Once you have the Waiver and Consent signed and filed with the Court, your attorney will only need to prove that you are a fit parent to Adopt. Typically, when a biological parent willingly signs a Waiver and Consent form, it becomes much easier to prove that you are a parent fit to care for the child. You will still need to participate in a hearing, but that hearing will likely be quick and easy. If successful at such a hearing, the Court will Order the Adoption.
Uncontested Adoption of a Non-Family Member: An Uncontested Adoption of a Non-Family Member is similar to an Uncontested Adoption of a Family Member in that your attorney will be required to provide a Waiver and Contest of Adoption to the Court. The only real difference between an Uncontested Adoption of a Family Member and Non-Family Member is that in the case where you are not related to the child, you will still have to open yourself up to a Home Study, as mentioned above. If that Home Study is favorable to you, your attorney has filed a Waiver and Consent form, and your attorney is able to prove that you are a fit parent, your Adoption will be Ordered by the Court.
Requirements to Adopt
As we have discussed above, an Adoption requires two basic proofs. First, that the biological parents of the child are unfit as a parent; and second, that you are fit as a parent. Fitness can be proven and disproven a number of ways. In determining whether a parent is fit or unfit, Illinois Courts look to the Illinois Adoption Act for guidelines. This Illinois State Law lays out a number of possible ways an experienced Child Custody or Adoption Lawyer can prove a party to be unfit. Those include:
Physical and/or Emotional Abuse of a Child
Legitimate Neglect of a Child
Disinterest in a Child’s Wellbeing
Legitimate Lack of Responsibility for a Child
Placing the Child in a Dangerous or Unsafe Living Environment
Significant Substance Abuse that Result in any of the Above
Significant Mental Illnesses that Result in any of the Above
Proving that a parent is fit, is much more subjective. Typically, a fit parent can demonstrate that they do not have any of the elements above. A fit parent is also able to prove to the Courts that they can provide a comfortable living space for the child, that they can provide food and clothing for the child, and that they can take or have taken significant care and responsibility for the child in question or other children in their care.
When pursuing a Guardianship, you are generally seeking to take a more temporary form of responsibility. A Guardianship is an action taken in Probate Court as opposed to Family Law Court and is done in a circumstance where a child or children require a temporary support system and family. While Guardianships are temporary, they can often last for an extended period of time, so we advise our clients to go into a Guardianship proceeding with a mindset similar to an Adoption. While Guardianships often involve a minor child, it is important to note that it is possible to pursue a Guardianship of an adult as well.
The key to a Guardianship case is determining, first, whether the person who may need a Guardian (the Ward) actually does need a Guardian, and second, whether the person seeking to become a Guardian is actually capable of performing the duties set out for a Guardian by the Court. We have listed some of the most common forms of Guardianship actions below:
Guardianship of a Minor Child: Generally, a Guardian of a Minor is appointed when the parents of the minor have been proven to be unfit, either permanently or temporarily, and the Court requires a competent adult to care for the minor when there is no adult able to adopt the minor. This is most common in families where grandparents wish to take responsibility for their grandchildren while the parents are recovering from issues in their lives that make them unfit. We frequently see this while a parent is recovering from addiction or is in some form of criminal trouble. The Guardian of a Minor does not have to be a relative, but it is most common to see this in familial settings. In this action, the person seeking to be the child’s Guardian must seek a Court Order in Probate Court. The potential Guardian’s attorney will need to prove to the Court that the Guardian is able to provide a comfortable living environment and be able to provide for the child’s needs. If this is proven, the Court will appoint the Guardian through a document called “Letters of Office.” This is essentially a Court Order granting the Guardian the authority to act on behalf of the minor and care for the minor’s needs. Being granted Letters of Office for a minor will also allow the Guardian access to state aid for the minor child.
Guardianship of a Disabled Adult: Guardianships for a Disabled Adult are somewhat similar to those involving children, but in these cases, the Ward is a Disabled Adult who cannot care for or act for themselves. Again, this is typically a family member, but does not need to be. In these cases, the potential Guardian’s attorney must prove that they are capable of caring for the Disabled Adult and that they will responsibly manage the affairs of the Disabled Adult. Here again, the Probate Court will issue Letters of Office granting the Guardian the authority to act on behalf of the Disabled Adult. In these cases, the potential Guardian will also need to show that the Adult is actually Disabled – whether it be physically or mentally. This is typically done through medical records provided to the Court in a hearing.
Guardianship of an Estate: A Guardian of an Estate is a Guardian who is to be responsible for the Estate of a Disabled Adult, or simply put, is a person in charge of that Disabled Adult’s finances. This is a more limited form of Guardianship that allows a Disabled Adult some freedom to manage their day-to-day lives, but requires a Guardian to manage their finances. Here, a potential Guardian must show that the Disabled Adult is not capable of responsibly managing their finances alone and requires another adult to manage their financial affairs for them. In these cases, a potential Guardian must also prove that they themselves are responsible and can manage the Ward’s financial affairs responsibly. Again, in these cases, the Court will issue Letters of Office to the Guardian, granting that person the authority to act in this limited manner.
Limited Guardianships: A Limited Guardian is essentially a Guardian with limited authority, as directed by the Court’s Order. In cases of Limited Guardianship, the Ward is typically able to care for themselves to a degree, but may require some assistance. Again, the potential Guardian must prove to the Court that they are able to act in this limited fashion and that the potential Ward is in need of assistance. If these things are proven in Court, Letters of Office will issue stating the limited nature of the Guardian’s authority to act on behalf of the Ward.
Temporary Guardianships: While any of the above Guardianship cases are in the middle of Court proceedings, the Courts also have the authority to appoint a Temporary Guardian. In these circumstances, it will be clear to the Court that the potential Ward is in need of assistance, but the Court has not yet determined whether this Guardianship will be limited in any fashion, or who the permanent Guardian will be. Most often, the Temporary Guardian will become the permanent Guardian (also known as the Plenary Guardian), but the final Order has not yet been entered.
Requirements for a Guardian
The requirements for a Guardian to be appointed are similar to the requirements of Adoptive parents. The Guardian must show that they are fit to house the Ward, that they can provide for the Ward and that they are capable of carrying out the needs of a Guardian. In a Guardianship case, the requirements for the care of the Ward may vary and therefore the requirements for the Guardian may vary. In a Guardianship of a Minor case, the Guardian must show that the Ward will be comfortable living with the Guardian, while in a Limited Guardianship of a Disabled Adult, the Guardian must show that they are capable of serving the Ward in the limited fashion the Court establishes.
In all Guardianship cases, the Guardian will be required to file an annual report with the Court, proving that the Guardian is carrying out the needs of the Ward. This can usually be done through paperwork alone, but can also be done in person, in a courtroom. If you are a Guardian seeking assistance filing your annual report, consult with a Guardianship Attorney such as those at Crosby & Crosby LLP.
If you or someone you know is interested in pursuing a Guardianship case of any kind, call us today. Our highly skilled team works with our clients to provide the knowledge and experience needed to build a successful winning legal strategy. Schedule your free initial consultation with a Rockford Adoption Attorney or a Rockford Guardianship Attorney today to learn more about the services our team can provide you.