Adoption in Illinois

What is an Adoption?

An adoption is an important court proceeding that terminates the parental rights of a person’s biological parents and creates one or two new legal parents. The statute that governs the adoption proceeding in Illinois is 750 ILCS 50. Pursuant to the statute, a biological parent means the person is biologically or genetically related to that child as a parent. A legal parent is the person who is recognized as or presumed to be that child’s parent. A person can be a legal parent to a child by the marriage to or civil union with the child’s other parent at the time of the child’s birth or within 300 days prior to the child’s birth, unless they signed a denial of paternity, or they are listed as the father or mother on the child’s birth certificate. A man can also be recognized as a legal father of the child if his paternity of the child has been established, or adoption of the child has been established by a court of competent jurisdiction. A legal mother is a woman recognized as or presumed to be the child’s mother because she gave birth to the child, her maternity of the child has been established pursuant to the Illinois Parentage Act of 1984 or the Gestational Surrogacy act; or her maternity or adoption of the child has been established by a court of competent jurisdiction. Pursuant to The Illinois Parentage Act of 1984, a parent child relationship is established between a child and the natural mother by proof of her having given birth to the child.

Who may Adopt?

Any person, who is under no legal disability, and who has resided in the State of Illinois continuously for a period of at least 6 months immediately preceding the commencement of an adoption proceeding may adopt a child. Any member of the armed forces of the United States who has been domiciled in the State of Illinois for 90 days is eligible to adopt a child. Additionally, a reputable person of legal age and either sex may adopt a child. If the parties seeking to adopt are married, both spouses must meet all of the requirements and be a party to the adoption petition unless the parties have been living separate and apart for 12 months or longer. The requirement of the parties living in the State of Illinois for 6 months prior to the commencement of the proceeding, or 90 days prior for a member of the armed forces, does not apply to an adoption of a related child or a child previously adopted in a foreign country by the petitioner or to an adoption of a child placed in an agency. An agency refers to a public child welfare agency or a licensed child welfare agency.

Who may be Adopted?

A child may be adopted in Illinois if the child has been surrendered for adoption to an agency and the agency has consented to the adoption, or if a person authorized by a court to consent to the adoption has consented, or the child’s biological parents have placed the child in the custody of the prospective adoptive parents. With respect to an adult adoption, the adult is available for adoption if they have resided in the home of the person intending to adopt him at any time for more than 2 years continuously preceding the commencement of an adoption proceeding or if that person is related to the adult.

Types of Adoptions in Illinois

There are five different types of adoptions in Illinois. The first is related adoption and this occurs when at least one of the adopting parents is related to the person being adopted. When a step-parent wants to adopt a child a related adoption would take place as the step-parent’s spouse would be the biological parent to the child. A related adoption is typically the easiest type of adoption to accomplish. The second type of adoption is an agency adoption and this occurs when a licensed agency is given the authority to place a child with adoption parents. A private adoption occurs when the child is not placed with an agency and neither of the adopting parents are related to the child. An adoption of an adult occurs when a child is of the age of majority and is being adopted. The last type of adoption is a standby adoption. A standby adoption is an adoption in which a parent consents to custody and termination of parental rights to become effective upon the occurrence of a future event, which can either be death of the parent or the request of the parent for the entry of a final judgment of adoption.

Termination of Biological Parents’ Parental Rights

Adoption is only possible when the biological parents have voluntarily given up their parental rights or their rights are terminated by the court. A biological parent may voluntarily terminate their parental rights by completing a final and irrevocable consent to adoption document. This form states that the person acknowledges they consent and agree to the adoption of the child and that they permanently give up all custody and other parental rights of the child. After signing the document, the person understands that they may not change their mind, revoke or cancel the consent to adoption or recover custody of the child. The statute invokes a statute of limitations to revoke or void consent, it states, "no action to void or revoke a consent to or surrender for adoption, including an action based on fraud or duress, may be commenced after 12 months form the date the consent or surrender was executed." In the recent Illinois case of In re Adoption of J.W., a Minor, the biological parents moved to revoke their surrender of the child to an adoption agency more than 12 months after signing it due to the contention of fraud and a conflict of interest by the attorney representing the prospective adoptive parents. 48 N.E.3d 817, 818 (Ill. App. 5th Dist. 2016). While the statute states the 12 month statute of limitations, the trial court denied the agency’s motion to dismiss and certified a question for review of the Illinois Supreme Court. J.W., a Minor, 48 N.E.d at 818. The issue for the Supreme Court to decide is whether allegations of fraud or conflict of interest provide an exception the statue of limitations. Id. The biological parents argue that the Supreme Court should find that their allegations of conflict of interest fall within an exception to the statute of limitations. Id. They say that neither the statute nor any Illinois decisions directly address allegations of conflict of interest. Id. However, the Illinois courts have repeatedly and consistently held that the statute of limitations is absolute and the Supreme Court in this case held that the allegations of conflict of interest and fraud do not create and exception to the 12 month statute of limitations. Id.

The court may terminate the biological parent’s parental rights if the court finds through clear and convincing evidence that the biological parent is unfit. There are many grounds of unfitness stated in 750 ILCS 50/1 and these include, but are not limited to, abandonment of the child, failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare; substantial neglect of the child if continuous or repeated; failure to protect the child from conditions within his environment injurious to the child’s welfare; and extreme or repeated cruelty to the child.

Adoption Process

An adoption proceeding, for a child other than a related child, is commenced by the filing of a petition within 30 days after the child has become available for adoption. In the case of a child born outside of the United states, if the prospective adoptive parents of the child have been appointed guardians of the child by a court of competent jurisdiction in a country other than the United States, the adoptive parents must file a petition within 309 days after entry of the child into the Untied States. The petition must state the following: the adoptive parents full names, ages and address; when the adoptive parents acquired, or intended to acquire custody of the child, and the name and address of the person or agency from whom the child was or will be received; the name, place of birth (if known), and the sex of the child sought to be adopted; the relationship, if any, of the child to each adoptive parent; the names and place of residence of the biological parents, if known, and whether such parents are minors or otherwise under legal disability. The names and address of the biological parents shall be omitted and they shall not be made parties to the petition if (1) the rights of the parents have been terminated by the court, (2) the child has been surrendered to an agency, (3) the biological parent or parents have filed a disclaimer of paternity or have failed to file such declaration of paternity or a request for notice, or (4) the parent is a putative father or legal father of the child who has waived his parental rights by signing a wavier. Pursuant to the statute, a putative father is a man who may be a child’s father but who is not married to the child’s mother on or before the date of the birth of the child or has not established paternity of the child in a court proceeding before the filing of the petition for the adoption of the child. The petition must also include the name to be given to the child. Within 10 days after the filing of the petition, the court will appoint a welfare agency approved by the Department of Children and Family Services, or a person deemed competent by the court, to investigate accurately, fully and promptly, the allegations contained in the petition; the character, reputation, health and general standing in the community of the adoptive parents; the religious faith of the adoptive parents and, if ascertainable, of the child sought to be adopted; and whether the adoptive parents are proper persons to adopt the child and whether the child is a proper subject of adoption. The investigation includes a criminal background check with review of fingerprints. If the child is born outside of the United States, in addition to the required investigation described above, a post-placement investigation must be conducted. The requirement of a post-placement investigation shall be deemed to have been satisfied if a valid final order or judgment of adoption has been entered by a court of competent jurisdiction other than the United States with respect to the child and the adoptive parents.

The second step in the adoption process is for the court to hold an interim hearing. The purpose of the hearing for a private adoption is to determine the validity of the consent of the biological parents and to determine whether there is available suitable temporary custodial care for the child wanting to be adopted. In related adoption or agency adoption cases, the court will appoint a guardian ad litem for all named minors. After any necessary investigation deemed by the court is proved to be satisfactory, the court will terminate parental rights of the biological parents and order temporary commitment of the child to an agency or to a person deemed competent by the court, including the adoptive parents. If the parental rights of the biological parents have not been terminated prior to the hearing, service of summons are required to be served upon the parent or parents whose rights have not been terminated. Reasonable notice and opportunity to be heard shall be given to the parent or parents after service of the summons. An interim custody order may be granted without notice upon presentation to the court of a written petition, along with an affidavit, stating that there is an immediate danger to the child and that irreparable harm will result to the child if notice is given to the biological parent or parents or legal guardian. In the case of the child being born outside of the United States, if the adoptive parents have previously been appointed guardians of the child, the court may order that the adoptive parents continue as guardians of the child.

The final step in the adoption process is the final hearing and judgment order. 6 months after the date of the interim hearing, the final hearing will be conducted. The adoptive parents and the child must appear in person and the court may enter a judgment for adoption, provided that the court is satisfied from the report of the investigation, from the evidence that the adoption is for the welfare of the child and there is valid consent.

What happens after the final judgment order?

Upon the entry of a judgment of adoption, a child attains the status of a natural child of the adoptive parents, and the adoptive parents are responsible for the care of that child. Crouch v. Smick, 55 N.E.3d 199 (Ill.App.5th Dist. 2016). See In re Donte, 631 259 Ill.App.3d 246, 263 (1994) (holding: once adoptive placement is determined to be in the best interest of the child, it is up to the adoptive parents to decide whether to permit or deny continued contact with the child’s biological family.) The natural parents of the child are relieved of all parental responsibility for the child and are deprived of all legal rights as respects to the child. See Included in the biological parents severed rights are visitation, and obligations of maintenance and obedience. After the entry of final judgment, the clerk of the court that entered the judgment shall prepare a certificate of adoption and send the certificate to the Department of Public Health in order to obtain a revised birth certificate with the child’s name and list the adoptive parents as the child’s parents. Biological parents may register with the Illinois Adoption Registry. When the adopted child reaches the age of 21, he or she can contact the Registry and communication between the birth parent and the adopted child may be established.