Have guardianship, should we try to make things more permanent?

[ilokguardian]

What is the name of your state (only U.S. law)? Illinois

We have had guardianship of my step-sister's son, with her agreement, for the past 25 months. (He turns 4 this month.) Father is in prison in Oklahoma for Domestic Assult & Battery, Burglary, Threating an Act of Violence, Obstructing an Officer, as well as 5 or more various drug charges. He has been in prison for 3 years now, and is serving a 15 year sentence, where 10 are supposed to be in prison and the last 5 "under the rules of probation/parole." He was served when we did the guardianship through the court, and he did not respond. Mother also lives in Oklahoma, and has a variety of physical and mental conditions that currently make it difficult/impossible for her to take care of her son.

Father has contacted us 2 times by phone, both in November 2010. In the past month, he has contacted mom from prison and asked about the child. Since he is not supposed to have any contact with her, she reported this contact to the warden. Paternal grandmother (who lives in Ohio and has never met the child) calls us about 2 times per year. Mother calls every 4-6 weeks, has visited twice, and we visit her 2 times per year. Maternal grandmother with whom the child lived with until he came to live with us, lives in Oklahoma and visits 4 times per year & we visit her 2 times per year.

The child has lived with us long enough that we feel like it might be wise to make the arrangement more permanent than guardianship. Mom says she would like the child to eventually come live with her, but she knows that she is unable to take care of him currently. Unfortunately, over the past 2 years she hasn't made any progress toward changing that, and it doesn't look like the situation will change anytime soon. Mother is also concerned about the father having contact with the child or trying to use the child to "get at" her. (He was physically abusive to her throughout their relationship, with the only documented instance being the one he is currently serving time for.)

I think our 2 choices if we want to make things more permanent are to try to adopt the child or to try to get custody. My questions are:

(1) Do you think it would be in the child's best interest to try to change the situation to make it more permanent, or is this a case of "if it isn't broken don't try to fix it?"

(2) Do we have standing to try to get custody? Mom says that if it will protect the child from the father she would support us having custody.

(3) If we do try to get custody, with Mom's consent, can the father block it given he is in prison?

(4) Mom is very concerned about father having any contact with the child, so much so that she has discussed allowing us to adopt him (thus terminating both her and father's parental rights). If she supported us adopting the child, but the father objected, would that mean the adoption couldn't happen?

(5) The last time I spoke to the paternal grandmother, she said she wanted to start having visitation with the child. (She specifically said she wanted to come get him "for a few weeks at a time.") We don't feel like this is a good idea. Although I didn't outright say "no," she did mention going to court to get visitation if we wouldn't let her. It looks like Illinois does allow grandparents to sue for visitation, but one of the bits of the law seems to say that if the parent has turned the child over to anyone (other than DCFS) grandparents no longer have standing to sue for visitation. Does that apply in this case? (750 ILCS 5/607) (from Ch. 40, par. 607) Sec. 607. subsection (b), point (2) (B)

Thanks for any help or advice!

 

[LdiJ]

What is the name of your state (only U.S. law)? Illinois

We have had guardianship of my step-sister's son, with her agreement, for the past 25 months. (He turns 4 this month.) Father is in prison in Oklahoma for Domestic Assult & Battery, Burglary, Threating an Act of Violence, Obstructing an Officer, as well as 5 or more various drug charges. He has been in prison for 3 years now, and is serving a 15 year sentence, where 10 are supposed to be in prison and the last 5 "under the rules of probation/parole." He was served when we did the guardianship through the court, and he did not respond. Mother also lives in Oklahoma, and has a variety of physical and mental conditions that currently make it difficult/impossible for her to take care of her son.

Father has contacted us 2 times by phone, both in November 2010. In the past month, he has contacted mom from prison and asked about the child. Since he is not supposed to have any contact with her, she reported this contact to the warden. Paternal grandmother (who lives in Ohio and has never met the child) calls us about 2 times per year. Mother calls every 4-6 weeks, has visited twice, and we visit her 2 times per year. Maternal grandmother with whom the child lived with until he came to live with us, lives in Oklahoma and visits 4 times per year & we visit her 2 times per year.

The child has lived with us long enough that we feel like it might be wise to make the arrangement more permanent than guardianship. Mom says she would like the child to eventually come live with her, but she knows that she is unable to take care of him currently. Unfortunately, over the past 2 years she hasn't made any progress toward changing that, and it doesn't look like the situation will change anytime soon. Mother is also concerned about the father having contact with the child or trying to use the child to "get at" her. (He was physically abusive to her throughout their relationship, with the only documented instance being the one he is currently serving time for.)

I think our 2 choices if we want to make things more permanent are to try to adopt the child or to try to get custody. My questions are:

(1) Do you think it would be in the child's best interest to try to change the situation to make it more permanent, or is this a case of "if it isn't broken don't try to fix it?"

It might be helpful to file for permanent custody rather than just the guardianship. The guardianship appears to have been voluntarily given to you, which also means that it can be revoked. Custody could not simply be revoked.

(2) Do we have standing to try to get custody? Mom says that if it will protect the child from the father she would support us having custody.

(3) If we do try to get custody, with Mom's consent, can the father block it given he is in prison?

See what I wrote above, and yes dad could try to block it but it wouldn't go very fair since dad cannot be given custody himself.

(4) Mom is very concerned about father having any contact with the child, so much so that she has discussed allowing us to adopt him (thus terminating both her and father's parental rights). If she supported us adopting the child, but the father objected, would that mean the adoption couldn't happen?

That is a difficult question to answer under the circumstances. A local adoption attorney would be the best person to advise you as to whether or not it would be possible to terminate dad's parental rights against his will, in a situation with your set of circumstances.

(5) The last time I spoke to the paternal grandmother, she said she wanted to start having visitation with the child. (She specifically said she wanted to come get him "for a few weeks at a time.") We don't feel like this is a good idea. Although I didn't outright say "no," she did mention going to court to get visitation if we wouldn't let her. It looks like Illinois does allow grandparents to sue for visitation, but one of the bits of the law seems to say that if the parent has turned the child over to anyone (other than DCFS) grandparents no longer have standing to sue for visitation. Does that apply in this case? (750 ILCS 5/607) (from Ch. 40, par. 607) Sec. 607. subsection (b), point (2) (B)

Thanks for any help or advice!

I think that you are misunderstanding that subsection of the law a little. I just went back and reviewed it and I see nothing that takes away from a grandparent's ability to sue for visitation if someone other than the parent has guardianship or custody of the child.

However....grandma is living in fantasyland if she thinks that any IL judge is going to give her "a few weeks at a time" with the child...particularly since she is a virtual stranger to the child. I would really not worry about a gpv case at this time.