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If immigrants are worried about being detained or deported, they might be concerned about who will take care of their children. One option is to appoint a guardian to care for and make decisions for the child in the parents’ place. Getting a guardianship does not terminate parental rights, but depending on the type of guardianship, it can be hard to undo.
There are three types of guardianship for a child:
- Permanent plenary legal guardian,
- Standby guardian, and
- Short-term guardian.
Learn more about the types of guardianship. Below is specific information about how each type can help create a safety plan.
Permanent plenary legal guardian: In a plenary guardianship, the child lives with the guardian, not the parents. The guardian makes all decisions for the child. To get a plenary guardian, you have to go to court. A plenary legal guardian should not be used as a safety plan, unless the parents are comfortable with someone else taking over the care of their child permanently until they are 18 (or whatever the judge decides). You can undo a plenary legal guardianship, but it can be challenging and requires going to court.
Generally, a guardian needs to be at least 18, be a resident of the US, be of sound mind, not have a disability that prevents them from being 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 to be a guardian could be risky, so if your choice of guardian is not a citizen, it is important to find a lawyer.
Standby guardian: The court appoints someone who will take over as guardian when a parent can no longer 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 needs to file with the court within 60 days to create 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.
Short-term guardian: This can be done on very short notice and does not require going to court. A short term guardian is appointed for up to one year. It is an easy and effective safety plan.
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.
Note: A guardian ad litem (GAL) is a way for a judge to have someone represent a child in court. A GAL is not available to parents wanting to create a safety plan. This is because it does not create a guardianship, even though it uses the word guardian.
For more information on guardianship, you can contact:
- Cook County Guardianship Assistance Desk for Minors at (312) 603-0135
- Chicago Volunteer Legal Services at (312) 332-1624.
You can also find more details at Chicago Volunteer Legal Services' Minor Guardianship FAQ's, Guardianship Immigrant Planning Video (encuentre la versión en español aquí).
