A Voice for Children in Guardianship Proceedings

• DOI: http://doi.org/10.1111/fcre.12536
• Date: 01 October 2020
• Published date: 01 October 2020
• Author: Mollie McGuire

2020 WRITING COMPETITION WINNER

A VOICE FOR CHILDREN IN GUARDIANSHIP PROCEEDINGS

Mollie McGuire

This paper argues that children in guardianship proceedings—specifically cases with allegations of abuse, neglect, or depen-

dency; and cases that are contested—should be appointed a GAL. Many children in guardianship cases in probate court face

issues similar to those that children in juvenile court face, and yet, they are denied the right to an advocate as well as many

other important due process protections that are available in juvenile court. Critics of probate court have suggested a variety

of solutions, including outright abolition of guardianship cases in probate court.7 Because wholesale reform such as abolition

may not be financially or politically feasible, this paper suggest a smaller, more concrete solution—namely, the appointment

of a GAL for children in guardianship proceedings when allegations of abuse, neglect, or dependency are present, or when

the guardianship is contested.

Key Points for the Family Court Community:

The vast majority of the children in both probate court and juvenile court have experienced trauma. However,

CAPTA only requires a GAL for children in juvenile court proceedings.

There is a clear risk of “erroneous deprivation”of the children’s private interests through the current procedures used

in guardianship proceedings.

Mandating that each child in probate court has representation can ensure that children receive the best possible out-

come based on their unique circumstances.

Keywords: CAPTA; Child advocacy; Guardian ad litem; Guardianship; Probate court.

I. INTRODUCTION

Katie is eight years old and lives in Chicago, Illinois. Recently, after a thirty-minute hearing—

conducted without the assistance of any attorneys—a judge decided that Katie’s mother was unable

to care for Katie and that she must instead live with her grandmother. Katie is not currently in foster

care and in fact has never been in foster care.

1

Her mother was investigated by DCFS (Department

of Children & Family Services), but the allegations were determined to be unfounded. Why then is

Katie being judicially removed from her home?

Katie’s case was not heard in juvenile court—where abuse, neglect, and dependency proceedings

are held—and where an attorney would have been appointed to represent her. It was instead heard

in Cook County probate court, through a guardianship proceeding. In Cook County, the second

most populous county in the country,

2

one judge, in one courtroom, presides over every guardian-

ship case involving children.

3

Despite the fact that many of the children in this courtroom are

involved in the child welfare system, there is no court reporter and no social workers.

4

Some of the

children in these guardianship cases, approximately 200 a year, are appointed an attorney guardian

ad litem (GAL).

5

However, the majority are unrepresented and unheard.

6

Correspondence: molliejmcguire@gmail.com

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 1101–1114, doi: 10.1111/fcre.12536

© 2020 Association of Family and Conciliation Courts