SB1430 96TH GENERAL ASSEMBLY

LRB096 04815 AJO 14879 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB1430

Introduced 2/18/2009, by Sen. Dale A. Righter

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11-5	from Ch. 110 1/2, par. 11-5
755 ILCS 5/11-7	from Ch. 110 1/2, par. 11-7
755 ILCS 5/11-14.1	from Ch. 110 1/2, par. 11-14.1

Amends the Probate Act of 1975. Provides that the court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if the minor has a living fit parent (instead of living parent), adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor. Provides that with regard to a parental right to custody, fitness of the parent shall be determined as of the time of the filing of the petition to establish the guardianship. Provides that in determining fitness, the court may consider those grounds set forth in the Adoption Act as grounds for unfitness. Provides that if a parent is found to be unfit, as of the date of filing a petition, he or she shall not automatically be entitled to custody or to terminate a guardianship, even upon the removal of the disability, but shall be required to satisfy the provisions of the Act. Provides that other than a guardianship terminating because the minor reaches the age of majority, a guardianship shall not be terminated by a court unless the court finds, based upon clear and convincing evidence, that there has been a material change in circumstances since the guardianship was created and that termination is in the minor's best interest considering: the integration of the minor into the guardian's family; the effect that removal of the minor from the guardian's care would have on the minor; the minor's relationship with the proposed care giver or parent; the relative economic abilities and physical and emotional abilities of the parties to provide for the minor's needs; and the minor's environment with the guardian compared to the proposed environment.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Probate Act of 1975 is amended by changing Sections 11-5, 11-7, and 11-14.1 as follows:

(755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)

Sec. 11-5. Appointment of guardian.

(a) Upon the filing of a petition for the appointment of a guardian or on its own motion, the court may appoint a guardian of the estate or of both the person and estate, of a minor, or may appoint a guardian of the person only of a minor or minors, as the court finds to be in the best interest of the minor or minors.

(a-1) A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor or of a child likely to be born. A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor's person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence. If the designation is executed and attested in the same manner as a will, it shall have prima facie validity. The designation of a guardian or successor guardian does not affect the rights of the other parent in the minor.

(b) The court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if (i) the minor has a living fit parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consent to the appointment or, after receiving notice of the hearing under Section 11-10.1, fail to object to the appointment at the hearing on the petition or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction. 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.

(b-1) If the court finds the appointment of a guardian of the minor to be in the best interest of the minor, and if a standby guardian has previously been appointed for the minor under Section 11-5.3, the court shall appoint the standby guardian as the guardian of the person or estate, or both, of the minor unless the court finds, upon good cause shown, that the appointment would no longer be in the best interest of the minor.

(c) If the minor is 14 years of age or more, the minor may nominate the guardian of the minor's person and estate, subject to approval of the court. If the minor's nominee is not approved by the court or if, after notice to the minor, the minor fails to nominate a guardian of the minor's person or estate, the court may appoint the guardian without nomination.

(d) The court shall not appoint as guardian of the person of the minor any person whom the court has determined had caused or substantially contributed to the minor becoming a neglected or abused minor as defined in the Juvenile Court Act of 1987 unless 2 years have elapsed since the last proven incident of abuse or neglect and the court determines that appointment of such person as guardian is in the best interests of the minor.

(e) Previous statements made by the minor relating to any allegations that the minor is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning appointment of a guardian of the person or estate of the minor. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.

(Source: P.A. 90-430, eff. 8-16-97; 90-472, eff. 8-17-97; 90-796, eff. 12-15-98.)

(755 ILCS 5/11-7) (from Ch. 110 1/2, par. 11-7)

Sec. 11-7. Parental right to custody.) If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.

Fitness of the parent shall be determined as of the time of filing the petition to establish the guardianship. In determining fitness, the court may consider those grounds set forth in the Adoption Act as grounds for unfitness. If a parent is found to be unfit, as of the date of filing a petition, he or she shall not automatically be entitled to custody or to terminate a guardianship, even upon the removal of the disability, but shall be required to satisfy the provisions of subsection (b) of Section 14.1 of this Act.

(Source: P.A. 79-328.)

(755 ILCS 5/11-14.1) (from Ch. 110 1/2, par. 11-14.1)

Sec. 11-14.1. Revocation of letters.

(a) Upon the minor reaching the age of majority, the letters of office shall be revoked only as to that minor and the guardianship over that minor shall be terminated. The letters of office and the guardianship shall remain as to any other minors included in the same letters of office or guardianship order.

(b) Other than as provided in subsection (a), a guardianship of a minor shall not be terminated by a court, unless, upon clear and convincing evidence, the court finds that there has been a material change in circumstances since the entry of the order appointing the guardian and that the termination is in the best interest of the minor, considering, but limited to the following:

(1) the extent to which the minor has integrated into the guardian's family;

(2) the effect the removal of the minor from the guardian's care would have on the minor;

(3) the relationship of the minor to the proposed new care giver or parent;

(4) the relative economic abilities of the parties to provide for the minor's needs;

(5) the physical and emotional abilities of the parties to provide for the minor's needs; and

(6) the environment the minor would be in after termination of the guardianship compared to the minor's current environment with the guardian.

(Source: P.A. 90-796, eff. 12-15-98.)