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Illinois Temporary Custody Hearings In Child Protection Cases

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
July 8, 2020

In this article, we will discuss temporary custody hearings in Illinois and answer the following questions:

  • What Is the Purpose of the Temporary Custody Hearing?
  • What Documents Should Be Present at a Temporary Custody Hearing?
  • Who Should Be Notified Regarding the Temporary Custody Hearing?
  • What Are The Possible Outcomes of a Temporary Custody Hearing in Illinois?

What is the Purpose of the Temporary Custody Hearing?

The purpose of the temporary custody hearing is for the court to ascertain whether it should 1) retain jurisdiction of the case, and if so 2) whether it is safe for the child to remain at home during the court process or if the child should be placed elsewhere.

If during the temporary custody hearing the evidence presented suggests there is probable cause to believe the child has been abused, neglected, or dependent, the court will continue with its case. At this point, the court must also determine if the child’s safety is “of immediate and urgent necessity.” If so, the child will likely be placed in another home for the duration of the case until final judgment is handed down, or an attorney for the child’s parents obtains an order to have the child returned home before the final judgment.

A "good faith" attempt will be made to notify the minor, the parents, and any other party legally responsible for the child of the upcoming temporary custody hearing. The court may proceed with the hearing without the parents/guardian of the child present (this is known as ex parte), but an order from such a hearing only lasts 10 days.

What Documents Should Be Present at a Temporary Custody Hearing?

The petition alleging abuse, neglect, or a dependent minor can be filed by any person, agency, or organization, including the state’s attorney. The documents and reports present and available at the temporary custody hearing typically include:

  1. The state’s petition for adjudication of the wardship;
  2. The Division of Child Protection Investigator’s request for filing an abuse or neglect petition;
  3. The accompanying witnesses’ statements;
  4. A risk assessment chart; and
  5. The child welfare agency’s reasonable efforts checklist.

There may be other documents, but the above list is what is normally required for the hearing to proceed. The information contained in the DCP’s request for filing an abuse or neglect petition is the primary document of concern as that information is what the court looks at when making a decision. This report should include a summary of the investigation, including any witnesses’ statements. Other documents and reports often present at a child custody hearing include medical records, physician opinion letters, police reports, etc.

Who Should Be Notified Regarding the Temporary Custody Hearing?

All abuse, neglect, and dependency proceedings require three parties:

  1. The minor;
  2. The state;
  3. The parents, guardian, etc

The child will be represented by a guardian ad litem and the state prosecutes the case. All parties involved have the right to counsel and the right to be heard, present evidence, examine, cross-examine, etc. Previous foster parents or child welfare agencies associated with the minor also have the right to be heard during the proceedings.

What are the Possible Outcomes of a Temporary Custody Hearing in Illinois?

The primary objective of a temporary custody hearing in a child protection case is to determine if there is probable cause that a child was abused, neglected, or is dependent. Based on the court’s ruling from the evidence presented during the proceedings, there are three potential outcomes:

  1. The court finds that there IS NOT probable cause to believe the minor was abused, neglected, or is dependent; the petition is dismissed and the minor is returned to the legal guardians if currently in protective custody;
  2. The court finds that there IS probable cause to believe the minor was abused, neglected, or is dependent. The court retains jurisdiction of the case and the custody hearing is set. At the end of the hearing the judge orders the child be removed (at least temporarily) from the home and placed with the appropriate legal guardian(s);
  3. The judge orders that the child can remain in his or her current home, but orders the home remain under supervision by an agency such as DCFS and an appointed child protection officer.

These three outcomes are summaries of the possible scenarios that may play out from a temporary custody hearing in a child protection case. Each case is different and the specifics of the case ultimately determine what action will be taken by the court at the end of the proceedings. If the child’s parents or current legal guardian feel they have been wrongly accused the most important first step is seeking the legal counsel of an experienced family law attorney. Poor representation in a child custody hearing can mean the difference between keeping your parental rights and losing your child. If you have any questions about child custody hearings please give us a call at 630-324-6666.

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