The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

The Best Interests of the Child in Probate Court: The Case for a Minor Child’s Guardian Overcoming the Superior Rights Doctrine By Elizabeth A. Demonte

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 was rebutted.8

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 correct.27

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
(2007).

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.

Elizabeth A. Demonte is an experienced family law litigator with the Law Offices of Jeffery M. Leving, Ltd. She has also done significant 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.

 
 
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