The twenty-first century has brought significant changes to the traditional American family,
which have, in turn, tremendously affected the issues presented before domestic relations
courts and probate courts in Illinois. With more children than ever born to unmarried
couples, the rise of blended step-parent families and single-parent families, and grandparents
being called upon to raise their grandchildren, the family demographic has certainly transformed.
In a situation where a natural parent comes back for his or her child who had been in the care of a
grandparent or other guardian for many years, a complex legal battle could ensue in which a court
may ultimately determine whether it is best for a child to stay with the guardian or be returned to
the natural parent.
Supreme Court of the United States has decided that
mothers and fathers have superior rights to make decisions
about their children above anyone else, and correspondingly,
a natural parent’s right to custody is superior to a claim by a
third person.1 This “Superior Rights Doctrine” is based on
the due process clause of the fourteenth amendment of the
United States Constitution, which protects the fundamental
right of parents to make decisions as to the care, custody, and
control of their children.2 The presumption that a fit parent’s
decision is in the child’s best interests is described in further
detail in decisions of the Illinois Supreme Court.3
The Illinois Probate Act recognizes that there shall be 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, but the presumption may be rebutted
by a preponderance of the evidence.4 Section 11-5(b) of
the Illinois Probate Act establishes the threshold requirement
that a petitioner must meet before the court can proceed to a
determination of the best interests of the child.5 Whether the
presumption is rebutted necessarily requires an evidentiary
hearing, unless the allegations in the petition would not, if
true, rebut such a presumption.6 In the case of In re A.W., the Fifth District Appellate Court held that the circuit court
erred because it should have allowed an evidentiary hearing
to determine whether a step-mother has standing. In other
words, whether a third party could rebut the presumption by
a preponderance of the evidence that a natural mother was able
to make day-to-day child care decisions.7 As a result, in that case, the Court remanded the case for an
evidentiary hearing on whether the presumption
When a child’s natural parent initially
consents to an order appointing a
third party as the child’s guardian, that
parent waives his or her right to challenge
the third party’s standing.9 Prior to its
amendment in 2011, the Illinois Probate
Act granted standing to a third party,
but only in limited circumstances when
the child’s parent consented to guardianship.
10 Under the prior version of the
statute, where a parent did not consent
to the original petition for guardianship,
the grandparent or other third party was
required to rebut the presumption that the natural parent was
willing and able to make day-to-day decisions for the child.11
Section 11-5 of the statute, as amended on January 1, 2011,
now additionally allows for standing where a parent’s physical
custody of the minor has been voluntarily relinquished.12
By adding Section 11-5(b), the legislature appears to have
given third parties, such as grandparents, an opportunity to
seek guardianship of a minor child even where the natural
parent is not in agreement.13
An analysis of Illinois case law and the Illinois Probate
Act, as amended on January 1, 2011, further reveals an expansion
of a guardian’s rights when it comes to terminating
a guardianship that has already been established.14 Prior to
the statutory amendments, In re Custody of Townsend was the
seminal case that dealt with a third party seeking to retain
custody of a minor child over the superior right of a natural
parent.15 The Illinois Supreme Court, in Townsend, held that
a third party seeking to obtain or retain custody of a child as
against the natural parent bears the initial burden.16 To satisfy
this burden, the third party must demonstrate “good cause
or reason to overcome” the superior rights doctrine and show
that it is in the best interest of the child that the third party be awarded custody.17 Subsequent
to Townsend, the Fifth District
Appellate Court clarified that a
guardian has standing to object to
the termination of a guardianship,
but stated that a guardian who seeks
to retain custody of the child must
first rebut the presumption in favor
of the natural parent.18
It was not until January 1,
2011 that the Illinois Probate Act
was amended to codify the legal
standard for termination of a guardianship
under Section 11-14.1.19
First, the parent must establish, by
a preponderance of the evidence, that
a material change in the circumstances of the minor or the
parent has occurred since the entry of the order appointing
the guardian.20 If the natural parent can satisfy that burden,
then the burden shifts to the guardian to show by clear and
convincing evidence that the termination of the guardianship
would not be in the best interests of the minor.21 The “best
interests” standard under the Illinois Probate Act is different
from the “best interest” standard set forth under Section 602
of the Illinois Marriage and Dissolution of Marriage Act.22
The probate court, in determining the minor child’s best interests,
must consider all relevant factors including: (1) the
interaction and interrelationship of the minor with the parent
and members of the parent’s household; (2) the ability of
the parent to provide a safe, nurturing environment for the
minor; (3) the relative stability of the parties and the minor;
(4) the minor’s adjustment to his or her home, school, and
community, including the length of time that the minor has
lived with the parent and the guardian; and (5) the nature and
extent of visitation between the parent and the minor and the
guardian’s ability and willingness to facilitate visitation.23
Even prior to the statutory amendments to the Illinois
Probate Act effective January 1, 2011, Illinois courts had already
acknowledged that the accepted presumption of the
superior rights of a natural parent in the care, custody, and
control of a child is not absolute.24 In the case of In re R.L.S., the Supreme Court of Illinois specified that, in the Probate
Act’s rebuttable presumption that a parent of a minor is willing
and able to make and carry out day-to-day decisions concerning
the minor, the word “able” means that the parent is“possessed of needed powers or resources to accomplish an
objective, rather than something akin to intelligence, knowledge,
skill, or competence.”25 Under Section 11-7 of the
Probate Act, “good reason” to overcome the presumption refers
to a finding of unfitness.26 The Illinois Supreme Court
clarified, in the case of In re R.L.S., that Section 11-7 of the Probate Act
means what it says—that fit parents
are entitled to custody under the
Illinois Probate Act, thereby overruling
Townsend in part, in that
Townsend’s assertion that a fit parent’s
custody rights are subservient
to the best interests of the child is not
Regardless of the subtle distinctions
between Townsend and In re
R.L.S., Illinois courts consistently
maintain that the presumption can
be rebutted under the appropriate
circumstances.28 In the matter of
the Marriage of Dafoe, the maternal
grandparents had been appointed
guardians of a child with the written
consent of the mother.29 When
the biological father sought to remove
the child from the maternal
grandparents’ care, the Fifth District
Appellate Court found good reason
and sufficient evidence to rebut the presumption and
to supersede the father’s superior right to custody of the
child.30 The facts showed that the father had had no contact
with the child for six years and refused to acknowledge the
child’s special needs, whereas the grandparents had raised the
child since he was four months old and had gone to great
lengths to provide the child with special services to address
his needs.31 The Court specifically stated that parental rights“do not spring full-blown from the biological connection between parent and child,” they require relationships more
enduring.32 The court-appointed expert in this case opined
that it would be in the child’s best interest for the grandparents
to retain guardianship and custody, based upon the psychological
functioning of each party, the ability of each party
to provide for the child’s emotional and physical well-being,
and the child’s own wishes and needs.33 The Court concluded
that the biological bond between father and son simply did
not overcome the actual, developed relationship between the
child and his grandparents.34
In the third district case of In re
Custody of Walters, the evidence was sufficient
to overcome the presumption
that a natural parent enjoys the superior
right to custody of the child, in a custody
dispute between the natural mother and
child’s maternal grandmother, where
the grandmother had custody of child
for more than ten years and had taken
responsibility for the child’s day-to-day
care and emotional, educational, and financial
well-being.35 In the case of In re
Custody of T.W., the Fifth District found
that where the maternal grandparents
sought custody after the mother voluntarily
surrendered physical custody of
him, awarding custody of the child to
his maternal grandparents did not violate
the father’s due process rights because
the evidence supported the trial
court’s finding that the award of custody
was in the child’s best interests, and the
court did not improperly ignore the
presumption of the father’s superior rights.36 In this case, the
child had a very close relationship with the grandparents and
displayed a preference for them, and the child was well-adjusted
to living with the grandparents because she had lived
with them for six of the seven years of her life.37
Although a guardian has standing to oppose the termination
of a guardianship, in order to succeed on such a
claim, he or she must still prove by clear and convincing evidence
that a continuation of the guardianship is in the child’s
best interests.38 But the natural parent also has a burden, by a preponderance of the evidence, to show a change in circumstances.
39 If the parent did not have to show a change
in circumstances, the court would merely be ruling on the
exact issue it previously decided in awarding guardianship;
furthermore, the parent could bring frequent petitions to terminate
at any time.40 At the time of In re the Estate of K.E.S.
and J.M.S., there was no statutory standard for terminating
a guardianship, so the Townsend-Wadman standards controlled.
41 The Fourth District Appellate Court, in its analysis
of In re Estate of K.E.S. and J.M.S., has touched on what it
means for there to have been a “change in circumstances.”42
The Court held that the denial of a mother’s petition to terminate
the guardianship was appropriate and that the correct
burden-shifting standard was applied, where the children’s
mother had seen the children only two times in a period of
eight years, was a stranger to the children, chose not to visit
the children when she had opportunities to do so, and had a
mental health disorder and an alcohol problem.43 Similarly,
in the case of In re the Guardianship of Jordan M., the grandparent
showed sufficiently good cause to rebut the superior
rights doctrine, and therefore, to terminate the guardianship
order, the mother had the burden of showing a change in
circumstances, and then the burden would shift back to the
grandparent to prove it was in the child’s best interest that
she retain guardianship.44 In that case, the grandparent had
plenary guardianship over the child, with the consent of the
mother, and the guardian had maintained the consistent
care, custody, and control of the child.45
The outcome in the Wadman case was different, most
significantly because less than two years had passed since the
minor was under the guardians’ care.46 The Fourth District
Appellate Court found that permitting the natural mother
to have another chance to care for her four-year-old child by
terminating the guardianship and returning the child to the
care of the mother was in conformity with the agreement
that was made at the time the order was entered appointing
the guardianship.47 The Court pointed to Townsend, which
states that the courts should give significance to the claim of a non-parent “who has had actual or legal custody of the child
for a substantial period of time, especially if the evidence
shows that the child has become an integral member of a
true family unit.”48 Ultimately, the time period that the child
resided with the guardians in Wadman was not of sufficient
length to require the Court to continue the guardianship.49
The arrangement in that case was to be temporary; furthermore,
the mother testified that she had a home and a job
and was more careful with whom she associated; therefore,
construing the evidence most favorably to the mother in that
case, much of the claims of improper care of the child by the
mother could have been negated.50
The Fifth District Appellate Court has applied Section
11-14.1 of the Probate Act consistently such that once a
guardianship has been established, the Court has already
found either that the parent consented to the guardianship,
or that the parent was unable or unwilling to meet the child’s
daily needs.51 Either of these conditions is sufficient to rebut
the presumption of the natural parent’s superior rights.52
When the parent seeks to terminate the guardianship, if the
guardian overcomes this presumption, the parent then has
the burden of demonstrating that a change in circumstances
has occurred, and if the parent meets this burden, then the
burden shifts back to the guardian, who must show that continuing
the guardianship is necessary to protect the best interest
of the child.53
In a proceeding to terminate a guardianship, the Illinois
legislature appears to have removed the initial burden off
the guardian and back to the parent.54 There is an acknowledgement
that the circumstances surrounding a petition to
terminate a guardianship are inherently different from those
circumstances surrounding a petition to establish a guardianship.
55 The ultimate result is that an opportunity is presented
to a child’s guardian to defend against the termination of the
guardianship, which in the long run, could benefit certain
children whose natural parents have had little to no interaction
in their lives.
1 Troxel v. Granville, 530 U.S. 57, 65 (2000).
2 Troxel, 530 U.S. 57, 65; See also Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v.
Commonwealth of Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972).
3 See Wickham v. Byrne, 199 Ill.2d 309, 315 (2002); Lulay v. Lulay, 193 Ill.2d 455, 470 (2000); Mulay v. Mulay, 225 Ill.2d 601, 610
4 755 ILCS 5/11-5(b) (West 2012).
5 In re Guardianship Estate of Tatyanna T., 2012 IL App (1st) 112957, ¶ 21; In re A.W. and Emily R., 2013 IL App (5th) 130104, ¶ 14.
6 In re A.W., 2013 IL App (5th) 130104, ¶ 16.
7 In re A.W., 2013 IL App (5th) 130104, ¶ 19.
8 In re A.W., 2013 IL App (5th) 130104, ¶ 20.
9 In re Guardianship of Jordan M., 351 Ill.App.3d 700, 704 (4th Dist. 2004).
10 In re Guardianship Estate of Tatyanna T., 2012 IL App (1st) 112957, ¶ 26.
11 In re Guardianship Estate of Tatyanna T., 2012 IL App (1st) 112957, ¶ 26.
12 In re Guardianship Estate of Tatyanna T., 2012 IL App (1st) 112957, ¶ 22.
13 755 ILCS 11-5(b).
14 755 ILCS 11-14.1 (West 2012).
15 In re Custody of Townsend, 86 Ill.2d 502 (1981), overruled on other grounds by In re R.L.S., 218 Ill.2d 428, 447 (2006).
16 In re Custody of Townsend, 86 Ill.2d 502, 515.
17 In re Custody of Townsend, 86 Ill.2d at 515.
18 In re T.P.S. and In re K.M.S. v. D.W., 2011 IL App (5th) 100617, ¶ 14.
19 755 ILCS 5/11-14.1.
20 755 ILCS 5/11-14.1.
21 755 ILCS 5/11-14.1.
22 750 ILCS 5/602 (West 2012); 755 ILCS 5/11-14.1.
23 755 ILCS 5/11-14.1.
24 In re Custody of Townsend, 86 Ill.2d 502, 508; In re Marriage of Dafoe, 324 Ill.App.3d 254, 259 (5th Dist. 2001).
25 In re R.L.S., 218 Ill.2d 428, 441, superseded by statute, 755 ILCS 5/11-14.1.
26 In re R.L.S., 218 Ill.2d at 442.
27 In re R.L.S., 218 Ill.2d at 447.
28 In re R.L.S., 218 Ill.2d at 448.
29 In re Marriage of Dafoe, 324 Ill.App.3d 254, 256.
30 In re Marriage of Dafoe, 324 Ill.App.3d at 261.
31 In re Marriage of Dafoe, 324 Ill.App.3d at 261.
32 In re Marriage of Dafoe, 324 Ill.App.3d at 259.
33 In re Marriage of Dafoe, 324 Ill.App.3d at 260.
34 In re Marriage of Dafoe, 324 Ill.App.3d at 261.
35 In re Custody of Walters, 174 Ill.App.3d 949, 953 (3rd Dist. 1988).
36 In re Custody of T.W., 365 Ill.App.3d 1075, 1085 (5th Dist. 2006).
37 In re Custody of T.W., 365 Ill.App.3d 1075, 1085.
38 In re T.P.S. and In re K.M.S., 2011 IL App (5th) 100617, ¶ 15.
39 In re the Estate of K.E.S. and J.M.S. v. Schneider, 347 Ill.App.3d 452, 464 (4th Dist. 2004).
40 In re the Estate of K.E.S. and J.M.S., 347 Ill.App.3d 452, 462; In re Estate of Wadman, 110 Ill.App.3d 302, 305 (4th Dist. 1982); In re Estate of Webb, 286 Ill.App.3d 99, 101 (1st Dist. 1996).
41 In re the Estate of K.E.S. and J.M.S., 347 Ill.App.3d 452, 461; In re Custody of Townsend, 86 Ill.2d 502 (1981); In re Estate of Wadman, 110 Ill.App.3d 302.
42 In re the Estate of K.E.S. and J.M.S., 347 Ill.App.3d 452, 462.
43 In re the Estate of K.E.S. and J.M.S., 347 Ill.App.3d at 462.
44 In re the Guardianship of Jordan M., 351 Ill.App.3d 700, 706.
45 In re the Guardianship of Jordan M., 351 Ill.App.3d at 706.
46 In re Estate of Wadman, 110 Ill.App.3d 302, 308.
47 In re Estate of Wadman, 110 Ill.App.3d at 308.
48 In re Estate of Wadman, 110 Ill.App.3d at 305.
49 In re Estate of Wadman, 110 Ill.App.3d at 308.
50 In re Estate of Wadman, 110 Ill.App.3d at 308.
51 In re T.P.S. and In re K.M.S., 2011 IL App (5th) 100617, ¶ 17.
52 In re T.P.S. and In re K.M.S., 2011 IL App (5th) 100617, ¶ 17.
53 In re T.P.S. and In re K.M.S., 2011 IL App (5th) 100617, ¶ 15.
54 755 ILCS 5/11-14.1.
55 In re T.P.S. and In re K.M.S., 2011 IL App (5th) 100617, ¶ 17.
Demonte is an
law litigator with
the Law Offices of
Jeffery M. Leving,
Ltd. She has also
work on minor child guardianship cases
in probate court. Ms. Demonte received
her juris doctor from Loyola University
Chicago School of Law and graduated
summa cum laude from DePaul
University with a bachelor’s degree in Business Management.