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Kevin C. Cruz

In this article, we discuss the Illinois law affecting urgent and immediate necessity to remove a child from the household, based on allegations of abuse. We will answer the following questions:

  • Where does the burden of proof lie?
  • What defenses or alternatives to removing the child are available?
  • How does paternity affect visits and placement?
  • What happens if the court rules temporary custody is necessary?
  • Should the child always be placed with family first?

If the state is seeking the removal of a child based on allegations of abuse, neglect, or dependency, and it appears that probable cause exists, the lawyer for the defendant (most likely one or both parents) should be prepared to argue multiple alternatives. However, concerning placement, the case can quickly become complicated if issues of paternity arise or there is difficulty in finding a relative to provide a safe haven for the child. If the court ultimately rules that temporary custody is necessary, the attorney handling the case must consider the best placement option for the child if reunification is the goal.

Where Does The Burden Of Proof Lie?

In cases of emergency temporary child custody, the burden of proof in finding abuse, neglect or dependency falls on the state. The Juvenile Court Act reads, “the state must prove that it is a matter of immediate and urgent necessity for the safety and protection of the minor or of the person or property of another that the minor be placed in a shelter care facility.” Furthermore, if the court finds there is probable cause to believe the child is abused and there is urgent and immediate necessity to remove the child, it is presumed the same need exists for any other minor in the household. Child custody cases can quickly become complicated when considering the fate of multiple children. 

What Defenses Or Alternatives To Removing The Child Are Available?

The attorney representing the parents should be prepared to propose realistic alternatives to the state’s attempt at the removal of the child. In this, the attorney has two options: (1) contest urgent and immediate necessity and probable cause and pursue a dismissal of the petition; or (2) contest only urgent and immediate necessity and attempt to return the child to the parents via a court order. 

If the attorney believes she can avoid complete removal of the child, she will usually pursue an order of protection versus continuance with supervision, as the order of supervision requires agreement from both parties. This often leads to the person alleged to have committed the abuse to be removed from the home, allowing the child and the rest of the family members to remain.

While arguing why she believes that probable cause does not exist or that urgent and immediate necessity does not apply, the attorney for the parents can also propose alternatives for the judge to consider. These alternatives include:

  • Removing the abuser from the home and issuing an order of protection;
  • Placing a visiting nurse or some other appropriate third party in the home;
  • Having the abusing parent live with relatives and establishing a visitation schedule;
  • Arguing that the event was a one-time occurrence and the parents are already seeking counseling;
  • Arguing that the relationship between the parent and the abused child is due to poor behavior on both sides and that only the abused child should be placed into protective custody;

How Does Paternity Affect Placement and Visits?

Whether the individual whose paternity is in question is the alleged abuser or a potential placement option for the child, if there is any question of paternity it can complicate the court’s decision. If a child is removed from the home, most courts will argue that visits are not appropriate until paternity is established. If the mother was the abuser and the court is considering leaving the child with the potential father, the court may delay the decision until a paternity test is confirmed. However, this is unlikely if it can be shown that the potential father has been a prominent and supportive figure in the child’s life. The same can be said when arguing for visits for the perpetrator. If the attorney can show his client has been a prominent father figure in the child’s life, visitation may be awarded before paternity can be established.

What Happens If The Court Rules Temporary Custody Is Necessary?

If the court rules that temporary custody is necessary, the attorney for the parents should be ready to suggest potential placement options that are most likely to result in reunification, if that is the ultimate goal. Under the Juvenile Court Act and the Child and Family Services, placement with a ready and willing relative who has the financial, physical, and emotional capabilities to care for the minor is the preferred option. Under Illinois law, a relative can include step-family and “fictive kin,” which is defined as a person unrelated by birth or marriage, who is shown to have close personal or emotional ties with the child before placement was ordered. If the attorney cannot locate an individual that fits any of the above criteria, then the child may be placed into temporary foster care.

Should The Child Always Be Placed With Family First?

Placing the child with a relative first can be less disruptive to the child, especially if there was already a close relationship. Furthermore, if the relative is supportive of the parent, he or she can facilitate supervised visits with the child and help the parent receive counseling services. However, the attorney should be aware of any malice between a potential family placement and the parent. It is not uncommon for a family member to allege abuse of a child by the parent, for reasons beyond concern for the child’s wellbeing. Placing the child with a vindictive family member or relative may decrease the chance for reunification.

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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