The case of Thomas v. Barnes, 20120 Il. App. (1st) 112957, is important on this topic (In re the Guardianship of Tatyanna T.). This case is from the Appellate Court of the First Judicial District in Illinois wherein the appellate court addressed the issue of the January 1, 2011, amendment to 755 ILCS 5/11-5 (“Guardianship Statute”), and its application to petitions for guardianship.
Pursuant to 755 ILCS 5/11-5(b), in Illinois, “The court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if it finds that (i) the minor has a living parent, adoptive parent or adjudicated parent, whose parental 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 concerning the minor, unless: (1) the parent or parents voluntarily relinquished physical custody of the minor; (2) after receiving notice of the hearing under Section 11-10.1, the parent or parents fail to object to the appointment at the hearing on the petition; or (3) the parent or parents consent to the appointment as evidenced by a written document that has been notarized and dated, or by a personal appearance and consent in open court; or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction.
There is a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor. However, the presumption may be rebutted by a preponderance of the evidence.
Illinois courts have defined “voluntary relinquishment” as the affirmative act of waiving or abandoning a known right.” Thomas v. Barnes at 12. Under Illinois law, physical custody under the Guardianship Statute is determined by looking at the body of case law regarding physical custody as it applies to section 601(b)(2) of the Marriage Act. Id. A determination of physical custody under section 601(b)(2) should not turn on who is in physical possession of the child at the moment of filing the petition for custody, rather it requires that the parent somehow has voluntarily and indefinitely relinquished custody of a child. Id. at 13; see also In re A.W.J., 316 Ill.App.3d 91, 96 (2000).
To determine whether a parent has voluntarily relinquished custody, the court must consider such factors as (1) who was responsible for the care and welfare of the child prior to the initiation of custody proceedings; (2) the manner in which physical possession of a child was acquired; and (3) the nature and duration of the possession. Id.
Obviously, courts hearing these cases have to do a fact specific inquiry. It is important to have an attorney in your corner should you be in the middle of guardianship proceedings. At Stange Law Firm, PC, we have attorneys who can help if you wish to contact us.