Family & Safety

Guardianship of a minor is a court process where a judge gives an adult the legal authority to care for a child and make decisions for them. The adult is called a guardian. 

A minor is a person under the age of 18 (referred to as a child). In most cases, guardianship is only needed for youth under 18. After age 18, individuals are considered adults under the law and only need a guardian if they are disabled and cannot make their own decisions. 

Note that some immigrant youth may still be considered “minors” for the purposes of Special Immigrant Juvenile Status until they turn 21. 

A guardian is responsible for caring for the child and making important decisions in the child’s best interests. This may include:

• Providing a safe place to live;
• Making sure the child goes to school;
• Getting medical care for the child; or
• Handling the child’s daily needs.

Guardianship may be needed when a child’s parent is unwilling or unable to make and carry out day-to-day decisions for the child. This can happen if:

• A parent has died;
• A parent is unable to provide care;
• A parent leaves the child with someone else; or 
• A parent agrees to guardianship.

Guardianship does not end the legal relationship between a child and their parents. Parents may still have rights, and guardianship can sometimes be ended. Adoption is permanent. It ends the parents’ rights and creates a new legal parent-child relationship.

Guardianship cases are usually filed in probate court and are often used when someone who is not a parent is caring for the child. Parental responsibilities or custody cases are usually between parents and are handled in family court, commonly known as domestic relations. Those cases decide how parents share decision-making and parenting time. 

No. Guardianship does not automatically take away a parent’s rights. A judge generally cannot appoint a guardian if a parent is willing and able to make and carry out day-to-day decisions for the child, unless the parent agrees or does not object.

There are three main types of guardianship in Illinois, each of which has different rules and is used in different situations:

• Plenary guardianship: a judge gives a guardian full authority to care for a child.
• Short-term guardianship: a parent temporarily gives someone authority to care for a child without going to court. It is only in effect for one year, but can be renewed.
• Standby guardianship: a parent names someone to become guardian if certain events occur, such as the parent becoming unable to care for the child. The standby guardianship will have to go to court afterward to get guardianship of the child.

DCFS guardianship is when a judge appoints the Department of Children and Family Services (DCFS) as the legal guardian of a child in a juvenile court case, usually involving abuse, neglect, or dependency. DCFS then has the legal authority to make decisions about the child’s care and placement.

The child usually lives with a foster parent, relative caregiver, or in another placement chosen by DCFS. These caregivers provide day-to-day care, but DCFS remains the legal guardian and supervises the placement.

Learn more about DCFS guardianships.

Guardianship of immigrant children is the same legal process as any other guardianship, where an adult who is not the parent has authority to care for a child and make decisions for them. It may be used when a parent cannot care for the child, including situations in which a parent may be detained or deported, but their children are not. Guardianship does not end parental rights.

Depending on the family's needs, one type of guardianship may be preferred over the other. Learn more at Chicago Volunteer Legal Services' Minor Guardianship FAQ's and Guardianship Immigrant Planning Video (encuentre la versión en español aquí).

Options include plenary guardianship, short-term guardianship, and standby guardianship:

Plenary guardianship: In a plenary guardianship, the child lives with the guardian rather than the parents. The guardian makes all decisions for the child. To get a plenary guardian, there must be a court hearing with a judge. A plenary legal guardian should not be used as a safety plan unless the parents are comfortable with someone else permanently taking over the care of their child until the child is 18 (or whatever the judge decides). A parent can undo a plenary legal guardianship, but it can be challenging and requires going to court.  

Generally, a guardian must be at least 18, be a US resident, be of sound mind, not have a disability that prevents them from serving as a guardian, and not be convicted of a felony.  Illinois law does not officially require that a guardian be a legal resident. However, each court has different requirements for guardians, and some require legal immigration status. Nominating someone without lawful immigration status as a guardian can be risky, so if the chosen guardian is not a citizen, it is important to consult a lawyer.  

Short-term guardianship: In a short-term guardianship, a parent can quickly and temporarily give someone authority to care for a child without going to court. It is only in effect for one year, but can be renewed. However, there can be some drawbacks. The law requires health care workers, schools, and all other people to treat the short-term guardianship like a court-ordered guardianship, though this is not always the case. Short-term guardians may have problems enrolling children in school, getting public benefits, or getting medical care. 

Standby guardianship: In a standby guardianship, a parent names someone to become guardian if certain events occur, such as the parent becoming unable to care for the child. This usually happens when a parent gets sick or dies, but it can happen for other reasons as well. The standby guardian must file with the court within 60 days to establish this guardianship.

This is a useful safety plan for undocumented immigrants. However, it is important to note that standby guardians must meet the same rules as regular guardians. This means that some courts require the standby guardian to have legal immigration status. Also, a standby guardianship cannot be used to prevent another parent from getting custody. 

Sometimes. A guardianship case can allow a court to make special findings that may help a child apply for Special Immigrant Juvenile Status (SIJS), a form of immigration protection for certain unmarried children under age 21. These include findings that the child cannot reunite with one or both parents because of abuse, neglect, or abandonment, and that it is not in the child’s best interests to return to their home country. The court must have authority under Illinois law to make decisions about the child’s care and custody.

However, guardianship alone does not give a child legal immigration status. Only federal immigration authorities can grant immigration benefits. A guardianship case is often used to ask the judge to make these findings.

No. Guardianship is not required to enroll a child in school. A school cannot require a person to have legal guardianship if they have responsibility for the child. This may include showing that the adult:

• Has a court order related to the child,
• Receives public benefits for the child, or
• Provides care and a regular place for the child to live.

A child may also be enrolled if they live with an adult who has taken responsibility for them, as long as the child is not living there only to attend a specific school.

The Illinois Probate Act, found at 755 ILCS 5/Article XI, includes the laws about guardianship of a minor. For more information, forms, and step-by-step instructions, visit the Illinois Courts website.

Depending on what type of guardianship you are trying to get and whether other parties agree with the guardianship, you may want help from a lawyer, particularly in cases involving immigrant children:

• Guardianship Assistance Desk for Minors at (312) 603-0135 (Cook County)
• You can also contact Chicago Volunteer Legal Services at (312) 332-1624

You can use Get Legal Help to find a free legal aid organization or private lawyer near you.