When a child’s parents are unable to provide care, Illinois law allows the courts to appoint a guardian — someone who steps in to make important decisions for the child. But what happens when a biological parent wants to regain custody, and the court doesn’t give them a fair chance?
A recent Illinois appellate court decision, In re M.S., 2025 IL App (1st) 241925, offers an important lesson for families about due process, parental rights, and the limits of guardianship.
The Case in Plain English
In this case, a young girl, M.S., had been under DCFS supervision for several years due to neglect concerns involving her mother.
Her father, Benjamin, didn’t even know she was his daughter until much later and once paternity was confirmed, he stepped forward to be involved.
However, before he could participate fully, the court appointed a private guardian for M.S. and closed the DCFS case, effectively ending his chance to reunify with her. The father appealed, arguing that the trial court acted too quickly and violated his rights.
The appellate court agreed. It found that the trial judge failed to make key findings required by Illinois law — specifically, that Benjamin was “unwilling or unable” to care for his child.
Without those findings, the guardianship order couldn’t stand.
The court vacated the guardianship and sent the case back to a new judge.
What Illinois Families Can Learn
- Parents Have Fundamental Rights
Even when DCFS is involved, biological parents don’t lose their rights unless the court makes clear, evidence-based findings. If you’re a parent who wants to be part of your child’s life, you are entitled to notice, hearings, and a real opportunity to be heard.
- Guardianships Must Follow the Law
Before granting guardianship under the Illinois Probate Act, a judge must find that the parent is unwilling or unable to care for the child — and must say so on the record.
Skipping these steps violates state law and due process.
- Reunification Should Always Be Considered
Illinois courts are supposed to prioritize keeping families together whenever it’s safe and possible. If a parent is fit and willing, guardianship should not replace reunification.
Why This Matters for You
At the Law Office of Jonathan W. Cole P.C., we often see families who are confused about guardianship — whether they’re caring for a grandchild, helping a friend’s child, or trying to regain custody after DCFS involvement.
The In re M.S. case shows how important it is to have a knowledgeable attorney who can make sure your rights and your child’s future are protected every step of the way.
Need Guidance on Guardianship or Probate in Illinois?
If you’re facing a guardianship issue; whether for a child, an elderly parent, or an incapacitated loved one, we’re here to help you understand your options and protect your family’s interests.
Contact the Law Office of Jonathan W. Cole P.C. at (708) 529-7794 — “Your Neighborhood Law Firm.”
