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The Differences between Guardianship and Custody

The Differences between Guardianship and Custody

By: M. Scott Gordon

Sometimes, even a fit, loving parent may have to take a break from caring for their child or children. There may be an illness in the family, or financial hardship. When this happens, there is a way for the children to be taken care of without that parent losing legal custody through guardianship. Through guardianship, a child can be legally placed with another person.

Custody in Chicago

The concept of custody in Chicago and IL most often comes up in regard to divorce. When a couple decides to obtain a divorce, one of the things required is a parenting agreement. Unlike in many other states, however, Illinois courts do not presume that joint custody is in the best interests of the child. No rebuttable presumption exists in regard to custody determinations at the beginning; the court takes into account every piece of evidence as to which parent’s custody would be in the best interests of the child. Some of the factors include:

  • The circumstances of each parent (who can provide a safe, clean home);
  • The level of emotional attachment between each parent and the child;
  • The degree to which the child is ensconced in their current school and community (for example, how many friends the child has at their current school, and if they would have to move if custody changed);
  • The child’s preferences, though this is usually not dispositive; and
  • Many other factors.

A custody agreement will be handed down by a court during a divorce proceeding.

Legal Guardianship

Unlike custody determinations, guardianship is awarded when a parent is unable to take care of their child. It is very common for the guardian to be a relative or close family friend, but this is not required; in fact, it is actually quite easy to be appointed a legal guardian in most cases. If you are over the age of 18, not under guardianship yourself, a U.S. resident, and have no felony convictions, you are eligible to be approved as a guardian.

If you are unable to care for your child, you can have someone you trust file a Petition For Guardianship. If the Court approves the request, then that individual will now be the child’s guardian.

What happens if you want to cancel or revoke the guardianship? You can not automatically revoke a guardianship. Rather, you must Petition the Court and request that your child be returned to you and that guardianship be revoked. Generally, a Court will want you to demonstrate that the circumstances which originally caused the guardianship to be awarded (such as inability to care for the child) have been rectified and no longer exist.

Contact An Experienced Guardianship Attorney

It can be advantageous to have plans in place to provide for your children if you become unable to look after them. However, setting up a guardianship to your satisfaction must be done with care. The dedicated Chicago guardianship attorneys at M. Scott Gordon & Associates understand how sensitive these matters are, and will work hard to ensure the best possible outcome for you and your family. Contact us today to schedule an appointment at our Chicago or Skokie offices. We serve the entire Chicagoland area.