Frequently Asked Questions About An Illinois Adoption:
1. What is an adoption? Adoption is a legal process that changes who a child’s legal parents are.
2. What types of adoption exist in Illinois? All adoptions in Illinois do basically the same thing: they end the parent-child relationship between the original birth parents and the child, and they then create a new legal parent or set of parents for the child. While all adoptions do this same general function, adoptions are sometimes grouped into categories that share some common characteristics. Generally, attorneys talk about the following general types of adoptions:
A. “Private Adoptions”: These adoptions generally begin with the birth parent(s) and adoptive parent(s) locating each other without the help of an adoption agency. Sometimes the sets of parents will know each other directly, and sometimes they will be introduced to each other by a doctor, lawyer, or clergy. Even though no adoption agency is directly involved in the process, an agency will typically prepare a “home study” to give the adoption judge background information about the different sets of parents. An agency (or other professional) may also provide counseling services to the parties, especially the birth mother. If a third party is used, the identities of the parties may remain confidential.
B. “Agency Adoptions”: In an agency adoption, the birth parents give up or “surrender” their parental rights to the child to either a public (the Illinois Department of Children and Family Services) or a private adoption agency. The adoption agency then places the child with a family that has contacted the agency and requested its help in locating a child. The birth parent(s) may be involved in selecting the family where the child will be placed from a list of the families on the agency’s waiting list. Sometimes, rather than the birth parents “surrendering” their legal rights to the child, the parental rights of the birth parents have been terminated by the juvenile court because the birth parents have abused or neglected the child. In some circumstances, where a child is classified as a “special needs” child, the state Department of Children and Family Services may provide a “subsidy” to the adopting parents, to assist financially with raising the child after the adoption.
C. “Interstate Adoptions”: An adoption is described as an “interstate adoption” if not all of the parties (child, birth parents, adopting parent(s) live in the same state. In this circumstance, the adoption must comply with a law called the “Interstate Compact on the Placement of Children”. An “interstate adoption” can be either a “private adoption” or an “agency adoption”. However, an adoption agency will typically be involved to investigate the background of the adopting family. The placement authorities in both of the states must approve of the placement before the child can leave the state and be adopted in another state.
D. “Inter-Country Adoption”: An “inter-country adoption” involves a child being adopted who resides (at least initially) in a different country from the adopting parents. An adoption agency will be involved in some way in the process, because a “home study” of the adopting parents must be completed, and visits to the adopting parents’ home conducted. Depending on the laws of the country where the child is born, the child may be adopted in the country of the child’s birth. When this happens, adoptive families will often choose to “re-adopt” the child in their home state, for a variety of reasons. Many “inter-country adoptions” are governed by an international treaty called “The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoptions”.
E. “Related Adoption”: In a “related adoption”, one or both of the adopting parents are already related to the child prior to the start of the adoption. The most common type of a “related adoption” is a “step-parent adoption”. In a “step-parent adoption”, one of the parties asking the court to create a new parent-child relationship for the child is a birth parent to the child, and the other party is a current spouse of the birth parent.
3. What laws govern adoptions? Each state has its own special laws that govern adoptions that are filed in that state. Illinois is no exception. In Illinois, the law that primarily governs adoptions is the Illinois Adoption Act (750 ILCS 50/0.01 and following). However, other state laws such as the “Interstate Compact on the Placement of Children” (45 ILCS 15/1 and following), the “Adoption Compensation Prohibition Act” (720 ILCS 525/0.01 and following), and the “Illinois Parentage Act of 1984” (750 ILCS 45/1 and following) may also apply to an Illinois adoption. Illinois law must be followed whenever an adoption is filed in Illinois, even if the child was born in another state or country. In addition to Illinois state laws, there are other laws that may apply to an adoption in Illinois. These include “The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoptions” the federal “Immigration and Naturalization Act” and the “Indian Child Welfare Act”, among others.
4. Is there a maximum age at which a person can be adopted? No, both children and adults can be adopted, although there are different rules that apply for the adoption of an adult.
5. Can only married persons file a petition to adopt a child? No, the law in Illinois is very flexible about who can adopt a child. In most cases (unless the parties have been separated for at least twelve months), if persons are married, both of the spouses must agree to the adoption. In addition to married couples, in appropriate circumstances a single person and an unmarried couple, including a same-sex couple, may qualify to adopt a child in Illinois.
6. Can the child’s name be changed as a part of the adoption? Yes, the adoption court judge can change the name of the child as a part of the adoption process. After the adoption has been completed, the adopting parent(s)’ attorney can apply for a new birth certificate showing the child’s new name (or the child’s birth name with the adopting parents shown as the child’s parents if there is no request to change the child’s name). For a child born in Illinois, the request is made to the Illinois Department of Public Health. A “record of foreign birth” can also be requested for a foreign-born child adopted in the State of Illinois.
7. What are the legal requirements for an adoption in Illinois? It is not possible to briefly list all of the legal requirements for an Illinois adoption. However, the following requirements generally must be met before an adoption can be completed in Illinois:
A. Those persons who have legal rights regarding the child must be identified and made a “party” to the adoption. The persons who have legal rights will vary in different circumstances. Sometimes, a juvenile court will already have terminated the parental rights of the birth mother and the birth father before the adoption petition is filed.
Unless termination of parental rights has occurred, in an adoption of a minor, the parties to an adoption will typically include the person(s) who want to adopt the child, the child, and the birth parents. If the birth father cannot be identified (as is sometimes the case), special rules will apply about the kind of notice that must be provided to persons who potentially may be the father of the child. If an agency has been given the power to consent to the child’s adoption, this agency must also be made a party.
B. Once the necessary “parties” to the adoption have been identified, the “Petition for Adoption” can be filed with the appropriate court. Filing this Petition begins the court process, the end result of which is to establish a legal parent-child relationship between the child and the person(s) wanting to adopt. The person(s) seeking to adopt the child are the “Petitioners” in the case. Those others with a legal interest in the child are called “Respondents” or “Defendants”. The “Petition for Adoption” will provide information to the court about the person to be adopted and the person(s) wanting to adopt. The kinds of information the “Petition” must contain are described in the Illinois Adoption Act.
Among other things, the “Petition” must describe why the child is “available” for adoption. Sometimes the birth parents of the child have signed special legal papers in which they agree or consent to the adoption of the child. If no such documents have been signed, the “Petition” will describe what things have happened in the child’s and birth parents’ lives that make the birth parents “unfit” to act as parents to the child.
C. Once the “Petition for Adoption” has been filed with the court, the “Respondents” (“Defendants”) must either file papers with the court in which they agree that the adoption can proceed, or they must be formally notified and “served” with the “Petition for Adoption”.
D. Once the necessary notices have been given to everyone having a legal interest in the adoption, the judge who is assigned to the case will enter certain orders. The number and content of these orders will vary from case to case. They may include:
(1) an “Interim Order” (this order gives the prospective adoptive parents legal custody of the child during the “interim”, or period between the time the adoption Petition is filed and the date of final hearing in the case).
(2) an “Order of Investigation”: In an unrelated adoption, this order directs a social service agency to do a study of the background and living circumstances (a “home study”) of the prospective adoptive family. As a practical matter, where a prospective adoptive family has been working with an agency throughout the process, much of the work on this “home study” has already been completed.
(3) an “Order Appointing Guardian ad Litem”: In most adoptions, the Adoption Act requires the court to appoint an attorney as a “guardian ad litem” for the child. This “guardian ad litem” acts as the “eyes and ears” of the court by meeting the prospective adoptive parent(s), reviewing the “home study”, investigating any issues that make suitability of the adoption uncertain, and determining if the adoption is in the child’s “best interests”. As a result of this work, the “guardian ad litem” will typically make a recommendation to the court about whether the adoption should occur. The guardian ad litem will be paid for services, often by the adopting parent(s).
E. When all of the necessary preliminary work has been completed, and all of the legal requirements have been met, a final hearing on the “Petition for Adoption” is held. At this hearing, the attorney for the prospective adoptive parents will present the evidence necessary to persuade the court that the adoption should be granted, and that an “Order of Adoption” or “Judgment of Adoption” should be entered.
F. After the final hearing has been held, the attorney for the Petitioners will take the steps necessary to have a new birth certificate (or “record of foreign birth”, if the child has been born in another country) issued by the Office of Vital Records in the state of the child’s birth. How long it will take before this document is issued varies from state to state, but typically takes two to four months, although in some states it can take substantially longer. After the new birth certificate has been issued, the adoptive parent(s) can then apply to the Social Security Administration for a new Social Security card (and in some cases a new Social Security number) for the child.