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ADOPTION
Frequently Asked Questions
The following questions and answers are provided for general purposes only. They do not constitute legal advice nor do they create an attorney-client relationship between Ballard, Desai, Bush-Joseph & Horwich and the reader. Persons seeking legal advice should individually consult with a qualified attorney who has had the opportunity to review the relevant facts of their particular situation.
What
types of adoption are available to Illinois residents?
When
should prospective adoptive parents consult with an attorney?
What laws apply to adoptions?
Is a preplacement homestudy
required in order to adopt?
What expenses can be legally
paid by the adopting parents?
What information is legally
required to be given to the adopting parents about the child?
What procedures are involved
in the birthparent's consent to the adoption? When are the consents final?
Under what circumstances can a consent be revoked?
What are the rights of birth
fathers? Is the father's consent required?
Must the child be placed
in foster care prior to being placed with the adopting parents?
How long does an adoption
take to complete?
When can adoptive parents
get a birth certificate and social security number for their child?
What types of adoption are available to Illinois
residents?
The following categories of adoptions are available:
1) Private/Direct/Independent - Private adoption is legal in Illinois, as it is in the majority of states. In this type of adoption, the birth parents place their child with a specific adopting family through the services of an attorney. Even though no agency is involved, counseling can be provided through an independent counselor. Identities of all parties may be kept confidential.
2) Agency - In an agency adoption, the birth parents "surrender" their parental rights to an agency, which then chooses the adopting family from its list of families who have been pre-approved by that agency.
3) Agency-Assisted/Identified/Designated - An agency-assisted adoption is a hybrid of a private and agency adoption. Here, the birth parents select the adopting family without the help of an agency. The agency is then retained to provide counseling services to the birth parents and adopting family, conduct a homestudy of the adopting family and make all the arrangements for the adoption. Legally, the birth parents "surrender" to the agency, and the agency then places the child with the identified adopting family.
4) Interstate - When the child's birthmother resides in a state different from the adopting family, the adoption is interstate, and the adoption must comply with a law called The Interstate Compact on the Placement of Children. An interstate adoption can be private, agency or agency-assisted. For Illinois residents, the adopting parents must have completed a homestudy and obtained a foster parent license from an Illinois child welfare agency, even if the adoption is private. Typically, the parental rights of the birth parents are terminated in accordance with the law where the child resides, and the adoption is completed in the state of residence of the adopting parents. In addition, the Interstate Compact authorities in both states must approve the placement before the child is allowed to physically leave the state where the birth parent resides and enter the adopting parents' state of residence.
5) Intercountry - When the child resides in a country different from the adopting family, the adoption is intercountry. The adopting family must complete a homestudy conducted by an Illinois child welfare agency, therefore most intercountry adoptions begin with the assistance of an Illinois agency. Agencies and other resources outside the state of Illinois are often involved as well. In many countries, the adoption is actually completed in the child's country of origin, although many adoptive families "re-adopt" the child in a legal proceeding in the United States to confirm the validity of the foreign adoption. In a few countries, such as Korea, the Philippines and India, the adoption must be completed in the United States. [back]
When
should prospective adoptive parents consult with an attorney?
Even when prospective adopting parents are working with an agency, they
should consider consulting with an attorney knowledgeable in adoptions
to advise them of their legal rights and the possible risks they may face
in an adoption. At a minimum, an attorney must be retained to represent
the adopting parents in the adoption proceeding after the child has been
placed. In a private adoption, an attorney should be retained as one of
the first steps. As with any business relationship, adopting parents are
entitled to a clear explanation of an attorney's services and charges
prior to retaining that attorney.[back]
What
laws apply to adoptions?
Adoption law is primarily state law, and every state has its own adoption
statutes. Court decisions interpreting adoption statutes are called case
law, and give further meaning to these statutes. In addition, federal
law, such as the United States Constitution, the Immigration and Naturalization
Act, the Indian Child Welfare Act and the Servicemembers Civil Relief
Act impact on adoptions. [back]
Is
a preplacement homestudy required in order to adopt?
A homestudy is not required in an unrelated private adoption where
everyone involved resides in Illinois. A homestudy and foster parent license
is necessary to adopt through an agency and in an interstate adoption,
including a private adoption. A homestudy is required in an intercountry
adoption where the adoption is completed in the country of origin, and
a homestudy and a foster parent license is required where the intercountry
adoption is completed in Illinois. [back]
What
expenses can be legally paid by the adopting parents?
Illinois law allows adopting parents to pay their own legal fees, the
agency fees, and the medical expenses of the birth mother without prior
approval of the Court. Adopting parents must obtain the court's approval
in order to legally pay for a birth parent's living expenses (food, clothing,
and shelter during the pregnancy for the period beginning 120 days prior
to the expected due date and up to 60 days after the child's birth only)
or attorneys fees. Except for these specific types of payments or for
payments to, or by, licensed child welfare agencies, it is a felony to
pay, or receive, compensation for the placement of a child. An illegal
payment might also allow a birth parent to invalidate her consent, and
force the adopting parents to return the child to the custody of the birth
parent, the agency, or the Department of Children and Family Services.
[back]
What
information is legally required to be given to the adopting parents about
the child?
Illinois law requires agencies to give non-identifying information, if
known, regarding the child's mental, medical and social history to the
adoptive parents and also to the child once he reaches the age of 18.
Adopting parents are entitled to this information prior to the child being
placed with them by an agency. In a private adoption, the adopting parents
(or their attorney) must obtain written permission from the birth parents
to receive any mental, medical and social information about the birth
parents from third parties. [back]
What
procedures are involved in the birthparent's consent to the adoption?
When are the consents final? Under what circumstances can a consent be
revoked?
In Illinois, a birth parent must sign a consent to adoption (or surrender,in
an agency adoption), in front of a judge, clerk of the court, court social
services personnel, a representative of the Department of Children and
Family services (DCFS), or a representative of a licensed child welfare
agency. A birthmother must wait a minimum of 72 hours after the child's
birth before signing a consent or surrender. A birth father may sign a
consent or surrender prior to the child's birth, but he may revoke that
consent up to 72 hours after the child's birth. He may also sign after
the 72 hours period has passed. In addition, a birth father may waive
his parental rights to the child before or after the child's birth either
by signing a notarized Denial of Paternity, or by failing to respond in
30 days to notice of the adoption. A consent or surrender is final and
irrevocable unless it was obtained by fraud or duress by the person taking
the consent or by the adopting parents (or by someone acting on their
behalf). In addition, a birth parent has no more than 1 year from signing
the consent or surrender to challenge its validity. [back]
What
are the rights of birth fathers? Is the father's consent required?
Every birth father does not have the power to block the adoption of his
child. A father who has demonstrated his commitment to his child through:
(1) marrying the mother;
(2) living with and supporting the mother and
child,
(3) obtaining a court judgment of paternity; or
(4) registering with the Illinois Putative Father
Registry as well as suing to establish himself as the child's legal father
in a timely way must
give his consent to the adoption of his child, or the adopting parents
must prove that he is "unfit" to be the child's parent. If the
father does not show his commitment in one of these ways, he must be notified
of the adoption, but his consent is not required. [back]
Must
the child be placed in foster care prior to being placed with the adopting
parents?
No, interim foster care is not required in Illinois. [back]
How
long does an adoption take to complete?
Generally, an unrelated adoption takes at least six months from the date
of the interim order granting initial custody of the child to the adopting
parents, or from the date that the child was placed with the adoptive
parents by an agency. An intercountry re-adoption may take only a few
weeks, depending on how long the child has been with the parents. [back]
When
can adoptive parents get a birth certificate and social security number
for their child?
An amended birth certificate is issued by the Illinois Department of Public
Health (IDPH) for all Illinois-born children and foreign-born children
adopted in the state of Illinois. The original birth certificate is sealed
and a new one is issued with the child's adoptive name and substituting
the adoptive parents' information for that of the birth parents. These
certificates are issued 4 - 6 weeks after the request is received by IDPH.
In order to have a social security number issued in the child's adoptive
name, the adopting parents must wait until the adoption is complete and
the child's name has been changed legally. The social security administration
requires two forms of identification in order to issue a number, and they
prefer that one form of identification be the amended birth certificate.
While the adoption is pending, adopting parents of a child born in the
United States may obtain an Adoption Tax Identification Number (ATIN)
from the Internal Revenue Service. An ATIN is good for 2 years and can
be used in place of a social security number until the adoption is final.
[back]
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