Guardianship and Nontraditional Families
100 Illinois Bar Journal 660, December 2012
2 Pages Posted: 14 Dec 2012
Date Written: December 13, 2012
Justice Kennedy observed in dissent in Troxel v. Granville, 530 U.S. 57, 98 (2000), a grandparent visitation case, that “the conventional nuclear family...is simply not the structure or prevailing condition in many households.” From there he observed that American states may choose to give to some child caretakers “de facto” parent status. Illinois lawmakers, both legislators and judges, have made such choices recently. Some of these choices involve guardianships.
Effective January 1, 2011, the Illinois Probate Code allows an appointment of a guardian for a minor whose “parent or parents voluntarily relinquished physical custody.” In 2011, the Illinois Appellate Court recognized the legitimacy of a coguardianship of a minor child in the birth mother and the mother’s female partner that was founded on a “lengthy relationship” between the coguardians beginning before the child was born via artificial insemination. In re T.P.S., 2011 IL App (5th) 100617. And in 2012, the Illinois Supreme Court further recognized possible new guardianship roles that are not expressly noted in the Probate Code, but that may be “implied” if the goals of the Code are served. Karbin v. Karbin, 2012 IL 112815.
Families with children now come in an array of configurations. New guardianship laws can preserve healthy childcare relations even when the families are reconfigured.
Keywords: guardianship, family law, child custody, child visitation, childrearing, parents, parentage, parenthood, nontraditional families, Troxel, probate
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