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Kevin O'Flaherty

There have not been any noteworthy changes to Illinois adoption laws in 2024; however, the Family Bereavement Leave Act of 2023 did make a change to allow a day off of work for an individual who has experienced a failed adoption. This article will provide an overview of Illinois adoption laws that are the most up to date.

What is the Illinois Adoption Act? 750 ILCS 50/0.01, et. seq.

The Illinois Adoption Act controls how adoptions in Illinois proceed.  It states who may adopt, who may be adopted, the various kinds of adoptions, and how parental rights may be terminated, to name just a few parts of the Illinois Adoption Act.  This article is not meant to be an exhaustive review of the Illinois Adoption Act.  

What is an adoption under the Illinois Adoption Act?

Adoption, under the Act, is a legal proceeding whereby a parent-child relationship is created between the adoptive parents or adoptive parent and the adoptee, the person being adopted.  

Who can adopt under the Illinois Adoption Act?

In Illinois, the first step to initiate the adoption process is to petition the court.  The party or parties filing the adoption petitioner are usually referred to as the petitioners.  The requirements for petitioners to adopt must be:

  • They are at least eighteen years old
  • Are not under any legal disability
  • And must be a resident of Illinois for at least six months before filing the adoption petition.
Adoption in Illinois

If the petitioner is married, the petitioner’s spouse must be a part of the petition unless the petitioner and his or her spouse have been living separate and apart for a period of twelve months or longer.  A married couple that reside together are both required to be petitioners even if one of the spouses is the biological parent of the child to be adopted by the married couple. If the petitioners are in a civil union, the same laws applies as they would for married couples.  Two unmarried individuals may be able to adopt a child together, as long as the court finds the adoption to be in the best interests of the child to be adopted.  

Under the Illinois Adoption Act, there are upper limits on the age restrictions to adopt a child.  This may not be the case for out of country adoptions and/or adoption agencies. The court must find that the adoption is in the best interests of the child to be adopted.  

The Illinois Adoption Act also requires petitioners that wish to adopt children not related to them to undergo further investigation.  These cases require a criminal background check and fingerprinting to be conducted.  The court will weigh the outcome of the results before granting or denying an adoption.  Although a petitioner may have a criminal record, depending on the type of criminal conviction, it may not bar the adoption.  For certain criminal convictions, a petitioner may be prevented from adoption from a public agency and may have to pursue a private adoption.  

Who Can be Adopted?

An adoptee is the child that is to be adopted by the petitioners.  A minor child is available to be adopted if the child has been surrendered to a child welfare agency and the agency has consented to the adoption or a person that is authorized to consent to adoption instead of the parents.  If the biological parents have placed the child in custody of a party that wishes to adopt the child, no consent is needed. It is important to note that a child over the age of 14 or older must consent to his or her adoption by the petitioners.  

Who Can be a Party to an Adoption Proceeding?

An adopted child has two biological parents, but both of the biological parents may not need to be a party to the adoption depending on the kind of adoption.  A putative father is a man who MAY be a child’s father but is not married to the child’s mom on or before the birth of the child, has not established paternity in a court proceeding before the filing of the petition for adoption.  The legal father is the husband of child’s mother.  The legal father has the same rights as the mother and this can become an issue if the couple separates during the pregnancy of the child to be adopted or the mother upon separation from her husband, wants to place the child for adoption, but the husband will not agree to adoption.  

These distinctions are important because it is possible to have more than two parents named as necessary parties.  If the mother is married during pregnancy, but she believes that the husband is not the father and there could be multiple potential putative fathers, they will need to be named as parties.  

A biological parent will not be named as a party to an adoption proceeding under certain circumstances.  A biological parent will not be part of the adoption proceeding if his or her parental rights have been terminated previously or previously surrendered a child to a child welfare agency.  A biological father is considered to be a party to the adoption proceeding if he has not waived his rights to the adoption, agreed to the adoption, extinguished his parental rights to a child welfare agency, or has had his parental rights terminated by a court order.  Further, the Illinois Adoption Act sets out certain criteria to determine if the biological father is a party to the adoption proceeding.   Such factors are:

  • Whether the father has manifested a connection to the mother of the child by marrying the mother
  • Living with the mother and child  
  • Providing support for the mother and child that he resides with
  • Legally establishing himself as the legal father through the proper court proceedings
  • Listing himself on the Illinois Putative Father Registry within the times required by the Act.

If the court determines that he does not meet any of the requirements of the Illinois Adoption Act, the court can order that he may not participate in the adoption case or receive further notice regarding the court proceedings.  

How do Parental Rights Become Terminated?

In order for a child to be available for adoption, the parental rights of the biological parents must first be terminated. There are limited exceptions to these requirements.  If a child’s biological parent is deceased, proof of biological parent’s death will need to be documented to the court.  The other exception is when one of the petitioners is a biological parent of the child.  It would not make sense for biological parent to terminate his or her parental rights in order to proceed with the adoption of his or her own child.  

How Can a Biological Parent’s Parental Rights be Voluntarily Terminated?

A biological parent can voluntarily terminate his or her parental rights by the issuance of a final and irrevocable consent to the adoption.  This type of consent is typically used with private adoptions.  A parent can also terminate his or her rights with a final and irrevocable surrender for to a public agency. Parents may not voluntarily terminate their parental rights in the previously listed manners 72 hours immediately within a child’s birth.  The biological father can execute a surrender or surrender, except that it may be revoked in writing within 72 hours after the child’s birth.  

How Can Biological Parents’ Parental Rights be Terminated Involuntarily?  

There are a few ways that parental rights can be terminated involuntarily.

First, if a court finds the parent to be an unfit parent by “clear and convincing evidence” as stated in the Illinois Adoption Act.  Unfitness by the biological parent must be plead and proved by the clear and convincing evidentiary standard by the petitioners for the adoption for at least one of the factors of unfitness.

Second, a putative father’s parental rights may also be extinguished by the Act in what is called the “father identification procedure.” This is a distinct legal proceeding that does not include the names of the petitioners that is served upon the putative father.  The notice requires the putative father to return a declaration of paternity with an appearance or a denial of paternity and a consent to the adoption proceeding.   If the putative father does not respond by doing the required actions, his rights can be terminated without any further notice, he will not be a party to the adoption proceeding, nor will there be any forgoing notice to the adoption proceeding.  

Finally, a putative father’s parental rights may be terminated for failure to register for the Putative Father Registry. The Act requires that a putative father must register within thirty days of the child’s birth, regardless of the putative father’s knowledge of the pregnancy or birth.  The law deems the timely registration a waiver of any right to notice the putative father may have had and the consent of the putative father is not deemed needed to pursue the adoption proceeding.  

This article has provided an overview of the adoption process in Illinois. If you have any questions regarding Illinois adoption laws, please contact one of our experienced Illinois adoption attorneys at 630-324-6666.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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