How Short-term Guardianships Can Help Protect Parent-Child Relationships

When mothers are arrested, most make arrangements for their children to move in with extended family members or trusted friends. Arrest and incarceration do not automatically mean that a mother has lost her parental rights. A long line of Supreme Court cases provides Constitutional protections to raise one’s own children and to make decisions about their care. These rights are not always honored in practice as they should be, and it is up to all of us to strive to make those rights into realities.

We often find ourselves fighting the state to preserve rights to custody and visits. But sometimes families pose obstacles as well. We wish that all family members would honor the parent-child relationship, and provide regular parent-child contact with the knowledge that the children need it. But sometimes family drama trumps the children’s best interest. Guardianship cases in Probate Court often end up determining where the children will live, and the future of the family.

In several states, short-term guardianship is a tool that can help parents ensure that their children have legally sound placements with caregivers who will take good care of the children and support the parent-child relationship. In Illinois, a parent can appoint a short-term guardian for up to one year with no court action. This means that if the mother returns home soon, she can revoke the guardianship when she is ready, and can reunite with her children without a long, difficult court process.

Last spring, advocates worked to amend Illinois’ Probate law to make sure that courts honor parents’ short-term guardianship appointments when third parties challenge them, and to prevent guardians from hiding children from their parents. Here are two stories.

When Julie was arrested, she appointed her mother, Sherry, as short-term guardian of her four children. Sherry had lived with Julie and the children in the same home for years, and the children were very comfortable with their grandma. Molly is the paternal grandmother of two of the children. Someone told Molly that she might receive financial benefits if she had guardianship of the children, so she filed in court for guardianship. She sent a copy of the guardianship petition to Julie in prison, but not to Sherry, the grandmother and short-term guardian. Julie received notice too late to do anything about it. The law did not require Molly to notify anyone but the mother, and did not require her to tell the judge that Sherry had been appointed short-term guardian. Unaware of the short-term guardianship, the court appointed Molly as guardian of all four children. Molly went with the police to Sherry’s home and forcibly removed the crying children. Sherry eventually was able to get a court order to vacate the guardianship. The children were ecstatic to be returned to her home. If the law had required notice of the guardianship hearing to the short-term guardian, this could have avoided unnecessary trauma for the children, disruption of their schooling and visits with their mom, and a stressful court battle.

Lori, serving a three year sentence for theft, consented for her aunt Ruth to be the court-appointed guardian of her daughter Jasmine, age 10. While in Ruth’s care, Jasmine had regular visits with her mom and excelled in school. Unfortunately, Ruth’s daughter Rita pressured Ruth until she took Jasmine to Alabama to Rita’s home, and under Rita’s bullying, Ruth returned to Illinois. Ruth did not inform Lori or the court that she was taking Jasmine out of state. Rita cut off Jasmine from visits and communication with her mother. Her household was chaotic and dangerous. Rita’s boyfriend sexually assaulted Jasmine. After he was arrested, Rita took Jasmine to live in California, again with no notice. Rita was then arrested and sent Jasmine back to Ruth’s home in Illinois. Jasmine is finally back with her mother, who is successfully employed and has been clean and sober for five years. Jasmine is struggling to deal with the trauma and chaos she went through, but she is healing. With no legal requirement that the guardian seek leave of court before removing children from the state, the mother’s wishes about what was best for her daughter were meaningless. The court was unable to assess the facts and circumstances of guardian’s plans to move the child, or to protect the child’s best interests.

It has become common for relatives to ignore short-term guardianships, to remove children from the state without the parents’ consent and without a court order, and to withhold their addresses when they move. Also, many judges entered guardianship orders based on short-term guardian forms, though the parents had no notice or court proceedings and had not consented to a court order. Fortunately, the law was changed in Illinois.

Public Act 098-1082 was signed into law in August. It resolves the earlier weaknesses in the law:

  • It requires guardians to petition the court prior to removing children from Illinois for 30 days or more, with proper notice to the parents, and to notify parents of the child’s whereabouts if they travel out of state for more than 48 hours.
  • It requires guardians to inform the court of children’s current address within 30 days of any change of residence.
  • It requires the court to honor short-term guardian appointments made by parents unless the petitioner can show it is not in the child’s best interest to remain with the short-term guardian.
  • It clarifies that a short-term guardian form is not consent for a court order for guardianship.
  • It balances the convenience of the guardian with the right of parents to know their children’s whereabouts and to communicate with the guardian, and provides for court oversight of children’s best interests.

Parents have the right to know the whereabouts and well-being of their children. Parental rights and court authority are at risk when guardians move children out-of-state with no notice. Guardians who change residences without telling the parents, and courts that disregard parents’ appointment of appropriate short-term guardians for their children violate Constitutionally-protected parental rights. We are happy that the new law addresses these problems so that parents can provide legally for their children’s care without risking their rights to custody of their children.

Gail Smith

Comments

Please contact D’Adre Cunningham (dadre [at] defensenet [dot] org) at the Washington Defender Association – Incarcerated Parents Project. They can offer support in the case you are discussing here.

Incarcerated Parents Project

Vision

Our criminal justice system values family and community connections and eliminates harms incurred by children, parents, families, and communities without relying upon imprisonment. Our child welfare system values family and community connections and eliminates harms incurred by children, parents, families, and communities without relying upon the destruction of parent-child relationships.

 Mission

The Incarcerated Parents Project (IPP) reduces the overall chances of family separation due to parental incarceration in Washington State.

Within the child welfare system, incarcerated parents are almost twice as likely as other parents to lose their children. This is largely due to significant barriers in accessing social services, visits with their children and legal representation.

Unnecessarily separating families is devastating to children, their incarcerated parents and our communities. In contrast, family reunification is linked to reduced recidivism, greater family stability, and improved emotional response for children. No parent should face the punishment of losing a child simply because he/she is serving a sentence.

In order to address the unique needs of families facing incarceration and help individuals preserve relationships with their children the Incarcerated Parents Project (IPP) will:

  • Provide case assistance and training to practitioners and the bench,
  • Establish a law school clinic to develop best practices and provide holistic representation,
  • And implement legislative strategies to reduce the overall chances of family separation and incarceration in Washington State.

The Incarcerated Parents Project is a collaboration between the Washington Defender Association (WDA) and Seattle University School of Law (SU) with the support of the University of Washington Law School (UW) and the Washington State Office of Public Defense (State OPD).

Contact D'Adre for IPP Case Assistance here Email: Dadre [at] defensenet [dot] org Telephone (206) 623-4321

What are the rights of a FOSA recipient (mother) when they are doing well and the unmarried parent (father) takes the child and keeps the child in order to sabotage the FOSA recipients program standing?
The DOC officer told the mother she cannot work, yet she has to pay her fines. The court papers the judge signed says she has to work. Doesn't that pose a conflict of interest. The mother did not want to request child support in fear the father would retaliate. However, the mother did file for child support and the father did retaliate, took the child and kept the child, jeopardizing the FOSA Program. The father then went on to say many things to the DOC officer to sabotage the mother, in his retaliation. What is done in situations like this. Is there anything in place to protect the mother at this point. She was given two weeks to get the child back and if she doesn't, she'll have to serve five years in prison, in which she will permanently lose her son. All what she's done to help herself would be lost.
She's been a nurse to her son, as well as, a mother. He was born with a heart condition, went through surgery, suffered a stroke, and had seizures for the first two years of his life. He's better now, but has a problem with the valves and will need another surgery. He must be carefully watched. He's four now. The father works a lot. The mother has not seen her son for nearly a month. She's worried about her son, and the going to prison. What can she do. Nobody wants to help her.

Please contact D’Adre Cunningham (dadre [at] defensenet [dot] org) at the Washington Defender Association – Incarcerated Parents Project. They can offer support in the case you are discussing here.

Incarcerated Parents Project

Vision

Our criminal justice system values family and community connections and eliminates harms incurred by children, parents, families, and communities without relying upon imprisonment. Our child welfare system values family and community connections and eliminates harms incurred by children, parents, families, and communities without relying upon the destruction of parent-child relationships.

 Mission

The Incarcerated Parents Project (IPP) reduces the overall chances of family separation due to parental incarceration in Washington State.

Within the child welfare system, incarcerated parents are almost twice as likely as other parents to lose their children. This is largely due to significant barriers in accessing social services, visits with their children and legal representation.

Unnecessarily separating families is devastating to children, their incarcerated parents and our communities. In contrast, family reunification is linked to reduced recidivism, greater family stability, and improved emotional response for children. No parent should face the punishment of losing a child simply because he/she is serving a sentence.

In order to address the unique needs of families facing incarceration and help individuals preserve relationships with their children the Incarcerated Parents Project (IPP) will:

  • Provide case assistance and training to practitioners and the bench,
  • Establish a law school clinic to develop best practices and provide holistic representation,
  • And implement legislative strategies to reduce the overall chances of family separation and incarceration in Washington State.

The Incarcerated Parents Project is a collaboration between the Washington Defender Association (WDA) and Seattle University School of Law (SU) with the support of the University of Washington Law School (UW) and the Washington State Office of Public Defense (State OPD).

Contact D'Adre for IPP Case Assistance here Email: Dadre [at] defensenet [dot] org Telephone (206) 623-4321

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