Bill Text: IL SB3386 | 2009-2010 | 96th General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Probate Act of 1975. In provisions setting forth circumstances under which the court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor, adds language permitting a petition if the parent or parents voluntarily relinquished physical custody of the minor, revises language permitting a petition if the parent or parents consent to the appointment, and makes other changes. Provides that upon the filing of a petition by a minor's living, adoptive, or adjudicated parent whose parental rights have not been terminated, the court shall discharge the guardian and terminate the guardianship if the parent establishes, by a preponderance of the evidence, that a material change in the circumstances of the minor or the parent has occurred since the guardian's appointment unless the guardian establishes, by clear and convincing evidence, that termination of the guardianship would not be in the best interests of the minor. Sets forth factors to be considered by the court in determining the minor's best interests. Repeals provisions concerning the parental right to custody.
Spectrum: Bipartisan Bill
Status: (Passed) 2010-07-27 - Public Act . . . . . . . . . 96-1338 [SB3386 Detail]
Download: Illinois-2009-SB3386-Introduced.html
Bill Title: Amends the Probate Act of 1975. In provisions setting forth circumstances under which the court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor, adds language permitting a petition if the parent or parents voluntarily relinquished physical custody of the minor, revises language permitting a petition if the parent or parents consent to the appointment, and makes other changes. Provides that upon the filing of a petition by a minor's living, adoptive, or adjudicated parent whose parental rights have not been terminated, the court shall discharge the guardian and terminate the guardianship if the parent establishes, by a preponderance of the evidence, that a material change in the circumstances of the minor or the parent has occurred since the guardian's appointment unless the guardian establishes, by clear and convincing evidence, that termination of the guardianship would not be in the best interests of the minor. Sets forth factors to be considered by the court in determining the minor's best interests. Repeals provisions concerning the parental right to custody.
Spectrum: Bipartisan Bill
Status: (Passed) 2010-07-27 - Public Act . . . . . . . . . 96-1338 [SB3386 Detail]
Download: Illinois-2009-SB3386-Introduced.html
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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Probate Act of 1975 is amended by changing | |||||||||||||||||||||||
5 | Sections 11-5 and 11-14.1 as follows:
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6 | (755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
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7 | Sec. 11-5. Appointment of guardian.
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8 | (a) Upon the filing of a petition for the appointment of a | |||||||||||||||||||||||
9 | guardian or on
its own motion, the court may appoint a guardian | |||||||||||||||||||||||
10 | of the estate or of both the
person and estate, of a minor, or | |||||||||||||||||||||||
11 | may appoint a guardian of the person only of
a minor or minors, | |||||||||||||||||||||||
12 | as the court finds to be in the best interest of the minor
or | |||||||||||||||||||||||
13 | minors.
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14 | (a-1) A parent, adoptive parent or adjudicated parent, | |||||||||||||||||||||||
15 | whose parental rights
have not been terminated, may designate | |||||||||||||||||||||||
16 | in any writing, including a will, a
person qualified to act | |||||||||||||||||||||||
17 | under Section 11-3 to be appointed as guardian of
the person or | |||||||||||||||||||||||
18 | estate, or both, of an unmarried minor or of a child likely to | |||||||||||||||||||||||
19 | be
born. A parent, adoptive parent or adjudicated parent, whose | |||||||||||||||||||||||
20 | parental rights
have not been terminated, or a guardian or a | |||||||||||||||||||||||
21 | standby guardian of an unmarried
minor or of a child likely to | |||||||||||||||||||||||
22 | be born may designate in any writing, including a
will, a | |||||||||||||||||||||||
23 | person qualified to act under Section 11-3 to be appointed as |
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1 | successor
guardian of the minor's person or estate, or both. | ||||||
2 | The designation must be
witnessed by 2 or more credible | ||||||
3 | witnesses at least 18 years of age, neither of
whom is the | ||||||
4 | person designated as the guardian. The designation may be | ||||||
5 | proved
by any competent evidence. If the designation is | ||||||
6 | executed and attested in the
same manner as a will, it shall | ||||||
7 | have prima facie validity. The designation of a
guardian or | ||||||
8 | successor guardian does not affect the rights of the other | ||||||
9 | parent
in the minor.
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10 | (b) The court lacks jurisdiction to proceed on a petition | ||||||
11 | for the
appointment of a guardian of a minor if it finds that | ||||||
12 | (i) the minor has a living parent,
adoptive parent or | ||||||
13 | adjudicated parent, whose parental rights have not been
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14 | terminated, whose whereabouts are known, and who is willing and | ||||||
15 | able to make
and carry out day-to-day child care decisions | ||||||
16 | concerning the minor, unless : (1) the
parent or parents | ||||||
17 | voluntarily relinquished physical custody of the minor; (2) | ||||||
18 | consent to the appointment or, after receiving notice of the
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19 | hearing under Section 11-10.1, the parent or parents fail to | ||||||
20 | object to the appointment at the
hearing on the petition ; (3) | ||||||
21 | the parent or parents consent to the appointment as evidenced | ||||||
22 | by a written document that has been notarized and dated, or by | ||||||
23 | a personal appearance and consent in open court; or (4) or (ii) | ||||||
24 | there is a guardian for the minor appointed by
a court of | ||||||
25 | competent jurisdiction. There shall be a rebuttable | ||||||
26 | presumption
that a parent of a minor is willing and able to |
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1 | make and carry out
day-to-day child care decisions concerning | ||||||
2 | the minor, but the presumption may
be rebutted by a | ||||||
3 | preponderance of the evidence.
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4 | (b-1) If the court finds the appointment of a guardian of | ||||||
5 | the minor to be
in the best interest of the minor, and if a | ||||||
6 | standby guardian has previously
been appointed for the minor | ||||||
7 | under Section 11-5.3, the court shall appoint the
standby | ||||||
8 | guardian as the guardian of the person or estate, or both, of | ||||||
9 | the minor
unless the court finds, upon good cause shown, that | ||||||
10 | the appointment would no
longer be in the best interest of the | ||||||
11 | minor.
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12 | (c) If the minor is 14 years of age or more, the minor may | ||||||
13 | nominate the
guardian of the minor's person and estate, subject | ||||||
14 | to approval of the court. If
the minor's nominee is not | ||||||
15 | approved by the court or if, after notice to the minor, the | ||||||
16 | minor fails to nominate a
guardian of the minor's person or | ||||||
17 | estate, the court may appoint the guardian
without nomination.
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18 | (d) The court shall not appoint as guardian of the person | ||||||
19 | of the minor any
person whom the court has determined had | ||||||
20 | caused or substantially contributed to
the minor becoming a | ||||||
21 | neglected or abused minor as defined in the Juvenile Court
Act | ||||||
22 | of 1987 unless 2 years have elapsed since the last proven | ||||||
23 | incident of abuse
or neglect and the court determines that | ||||||
24 | appointment of such person as guardian
is in the best interests | ||||||
25 | of the minor.
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26 | (e) Previous statements made by the minor relating to any |
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1 | allegations
that the minor is an abused or neglected child | ||||||
2 | within the meaning of the
Abused and Neglected Child Reporting | ||||||
3 | Act, or an abused or neglected minor
within the meaning of the | ||||||
4 | Juvenile Court Act of 1987, shall be admissible
in evidence in | ||||||
5 | a hearing concerning appointment of a guardian of the person
or | ||||||
6 | estate of the minor. No such statement, however, if | ||||||
7 | uncorroborated and
not subject to cross-examination, shall be | ||||||
8 | sufficient in itself to support
a finding of abuse or neglect.
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9 | (Source: P.A. 90-430, eff. 8-16-97; 90-472, eff. 8-17-97; | ||||||
10 | 90-796, eff. 12-15-98.)
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11 | (755 ILCS 5/11-14.1) (from Ch. 110 1/2, par. 11-14.1)
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12 | Sec. 11-14.1. Revocation of letters. | ||||||
13 | (a) Upon the minor reaching the age
of majority, the | ||||||
14 | letters of office shall be revoked only as to that minor
and | ||||||
15 | the guardianship over that minor shall be terminated. The | ||||||
16 | letters of
office and the guardianship shall remain as to any | ||||||
17 | other minors included in the
same letters of office or | ||||||
18 | guardianship order.
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19 | (b) Upon the filing of a petition by a minor's living, | ||||||
20 | adoptive, or adjudicated parent whose parental rights have not | ||||||
21 | been terminated, the court shall discharge the guardian and | ||||||
22 | terminate the guardianship if the parent establishes, by a | ||||||
23 | preponderance of the evidence, that a material change in the | ||||||
24 | circumstances of the minor or the parent has occurred since the | ||||||
25 | entry of the order appointing the guardian; unless the guardian |
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1 | establishes, by clear and convincing evidence, that | ||||||
2 | termination of the guardianship would not be in the best | ||||||
3 | interests of the minor. In determining the minor's best | ||||||
4 | interests, the court shall consider all relevant factors | ||||||
5 | including: | ||||||
6 | (1) The interaction and interrelationship of the minor | ||||||
7 | with the parent and members of the parent's household. | ||||||
8 | (2) The ability of the parent to provide a safe, | ||||||
9 | nurturing environment for the minor. | ||||||
10 | (3) The relative stability of the parties and the | ||||||
11 | minor. | ||||||
12 | (4) The minor's adjustment to his or her home, school, | ||||||
13 | and community, including the length of time that the minor | ||||||
14 | has lived with the parent and the guardian. | ||||||
15 | (5) The nature and extent of visitation between the | ||||||
16 | parent and the minor and the guardian's ability and | ||||||
17 | willingness to facilitate visitation. | ||||||
18 | (Source: P.A. 90-796, eff. 12-15-98.)
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19 | (755 ILCS 5/11-7 rep.) | ||||||
20 | Section 10. The Probate Act of 1975 is amended by repealing | ||||||
21 | Section 11-7.
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