Surviving Parent Not Entitled To Custody Of Disabled Child

MARCH 15, 1999 VOLUME 6, NUMBER 37

Parents of minor children are usually entitled to have custody of those children. In a divorce proceeding the court will decide which parent should retain custody of the child, or whether custody should be shared. Of course, those proceedings are often hotly contested and may result in bitterness and distrust.

Frequently, the custodial parent wishes to make arrangements for the future placement of the child in the event of the custodial parent’s death. Because the legal system protects the rights of parents to raise their own children, however, the designation of a non-parent as guardian of the child will ordinarily be ineffective; upon the death of the custodial parent, the surviving parent has the presumptive right to take custody of the child.

That is what happened in the Illinois case of Kirsten Johnson. When her mother Barbara died in 1995, Kirsten’s aunt Vera Howse petitioned for guardianship of Kirsten, then 16. Although Barbara’s will named Vera as guardian, and the trial court agreed that her appointment was in Barbara’s best interests, the Illinois Court of Appeals reversed her appointment, ruling that Kirsten’s father Eric Johnson was able and willing to take custody, and the appointment of a guardian was therefore inappropriate.

In Kirsten Johnson’s case, however, that was not the end of the issue. As a result of an automobile accident when she was nine, Kirsten’s ability to make her own decisions is limited. She not only sustained a serious head injury in that accident, she also has a sizable estate as a result of a lawsuit filed after the accident. She owns the home where she lives (with Vera and several other family members) and an annuity which will make payments totaling over $4 million.

Coincidentally, the Court of Appeals decision directing that Kirsten’s father be given custody was rendered just one month before her eighteenth birthday. Two days after the court order, Vera filed a petition to be appointed guardian of Kirsten under the guardianship system dealing with disabled adults. Eric Johnson objected, arguing that his priority as father should be as strong in adult guardianship cases as it is in minor custody issues.

After the trial judge appointed Vera as guardian, Eric appealed. Once again the Illinois Court of Appeals was faced with the question of who should have control over Kirsten’s future.

The answer on this second trip to the Court of Appeals was different. The judges pointed out that the rights of parents to raise their own children are no longer at issue when the children are of legal age, and the question therefore becomes one of the best interests of the disabled adult. In addition, the guardianship law provides that the wishes of the disabled person be strongly considered in making the choice; Kirsten Johnson was clear that she preferred to live with her aunt Vera. In re: Estate of Johnson, March 2, 1999.

The legal battle over custody of Kirsten Johnson was lengthy, costly and divisive. Both sides leveled accusations of impropriety–Eric Johnson pointed out that the home in which Vera and Kirsten lived had been purchased with Kirsten’s money from Vera, and that Vera paid no rent. He also suggested that Kirsten had been coached to tell court personnel that she preferred to live with her aunt. Vera, on the other hand, pointed out that Eric had been delinquent in child support payments and had not participated in Kirsten’s care before his ex-wife’s death. In the end, however, the central question was what would be in Kirsten’s best interests.

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