In today’s society, it is not unusual to find children living with grandparents, aunts, uncles or even friends. Sometime the children’s biological parents are in and out of the children’s lives, maybe even more out then in. These circumstances can be temporary, but they are often permanent or grow into permanent arrangements. In these situations, the natural parents’ rights continue unless or until some action is taken to change that.
When the arrangement becomes more than temporary, a caretaker should begin to consider whether to legalize the relationship to allow the provision of health insurance, to enroll the child in school and to have the authority of a parent in the absence of the biological parents. Sometimes it is even important to protect the child from the natural parents. The law strongly protects the rights of the natural/biological parents, but non-parents have authority under certain conditions to establish a permanent, legal relationship to a child.
The law as it relates to these issues is intended to balance parental rights, which are considered fundamental rights that are highly protected, with the best interests of children. If parents do not voluntarily relinquish their parental rights, the parental rights must be terminated, which is no easy task. There are other options, however, short of proving parental unfitness.
Non-parents caring for a child have two primary options to legalize the relationship. Those options are: 1) custody; and 2) guardianship. For either option, one significant hurdle often prevents the non-parent from proceeding: that hurdle is the legal right to initiate a custody or guardianship proceedings – otherwise known as “standing”. Standing is the legal concept that establishes a person’s right to bring a cause of action into the court system.
In a very general sense, standing for a nonparent to seek custody is established when a non-parent is in physical possession of the child. Obtaining “possession” of a child needs to occur, at least initially, with the consent, acknowledgement or acquiescence of the natural parents, and that possession must be more than temporary.
While custody establishes the right and authority of a non-parent to care for a child and to act for the child as a parent would, it is not absolutely permanent. If circumstances changes, a change in custody can be granted, for instance giving custody back to a natural parent or parents.
Guardianship is a more permanent arrangement. For guardianship, standing must be established in one of the following ways: 1) the natural parent voluntarily relinquishes physical custody of the minor, 2) the natural parents consent to the appointment of a guardian, 3) the natural parents fail to object to the petition for guardianship, or 4) the strong presumption of the natural parents’ ability to care for the child (fitness) is rebutted (thereby terminating the parental rights).
Each of these methods of establishing standing requires a highly factual determination and must be considered in light of all of the relevant facts and circumstances. Notice must be given to both biological parents, and the biological parents may fight the effort to establish guardianship. Standing is much more easily established with voluntary placement of the children in the custody of someone else, acquiescence in the placement or actual consent to the guardianship. Having to prove parental unfitness and terminating parental rights can be very difficult, even with much less than model parents.
Even after standing is established, the right to custody or guardianship must still be proven. Standing only gets one’s foot in the door. The right to custody or guardianship must be made in consideration of additional factors that can be best summed up as what is in the child’s best interests.
Anyone who is willing to care for another’s children, and to take custody or guardianship of them, is certainly worthy respect. It is no small thing to accept that responsibility. It can also be frustrating when it seems that the law makes obtaining custody or guardianship difficult. It is difficult for good reason – to protect against the arbitrary and capricious removal of children from parents.
Before making a decision to seek custody or guardianship of a child, a person should discuss the situation with a knowledgeable attorney and obtain an opinion whether standing exists or does not exist. Without standing, nothing else can happen. Knowing what is required to establish standing can be helpful in taking actions that may establish standing so that this hurdle can be jumped if or when the time comes that seeking custody or guardianship of a child becomes necessary or appropriate.
Roman J. Seckel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510