Legal Issues in Adoptions - The Cradle

2049 Ridge Avenue, Evanston, IL 60201. 847-475-5800
Legal Issues in Adoptions
The following is a brief outline describing adoptions through a licensed child-placing agency in Illinois.
Domestic Adoptions:
There are two interrelated but distinct legal processes:
(1) terminating birthparents’ legal rights to the child, and
(2) adopting parents becoming the legal parents to the child
Termination of Parental Rights
Birthmothers
Final and Irrevocable Surrender for Purposes of Adoption (Surrender):
• This is when birthparents voluntarily give up all rights to their child to a licensed child-placing
agency. Birthmothers cannot sign a Surrender until, at a minimum, 72 hours after the birth of
the child. An agency representative must be present to witness the signing of the Surrender.
The signature of the agency representative must be notarized.
• In the state of Illinois, the Surrender is final and irrevocable at the time of signing. An adoption
can be overturned only if the Surrender is taken under fraud or duress. Fraud is giving the
birthmother false information as to the nature of the surrender. Duress is pressure put on the
birthmother, that takes away her free will. An example of duress would be rushing the
birthmother to sign with the adopting parents present and waiting to take the baby home.
Fraud or duress must be on the part of an agency, the adopting parents or their agent.
Involuntary Termination of Parental Rights:
• Occasionally, a birthmother may abandon her born child. After proper notice, the court may
terminate her rights to the child, allowing an adoption to proceed.
Birthfathers
• Legal Father: If married to the birthmother at the time of conception (considered to be at least
300 days before the birth of the baby) or at the time of the baby’s birth, a man is considered to
be the legal father. Under Illinois law, a husband is presumed to be the biological father of the
child. Accordingly, a husband of the birthmother must sign either a Denial of Paternity (if he
does not believe he is the biological father), a Surrender (of a born or unborn child) if he
believes he is the biological father, or his rights must be terminated if he abandons the child or
fails to show a reasonable degree of interest, concern or responsibility.
• Putative Father: A putative father is a man not married to the birthmother who is alleged to be
the biological father of an unborn or born child.
o A putative father, like a legal father, may sign an Unborn Surrender for the Purpose of
Adoption. Once the baby is born, there is a 72-hour window during which the putative
or legal father may revoke the Unborn Surrender. After 72 hours have passed, the
Unborn Surrender becomes irrevocable.
o A putative father may sign a Final and Irrevocable Surrender for the Purpose of
Adoption 72 hours after the birth of the baby. Once signed, it is irrevocable under
Illinois law.
o A putative father may choose to sign a Denial of Paternity if he does not believe he is
the child’s biological father.
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Adoption of a Child
Petition to Adopt
Giving Notice to the Putative Father: In cases where the name and address of the
putative father are known and he is unwilling or unavailable to sign a surrender, he
may be served with a Father Identification (FI) Notice to Putative Father. The FI
notice comes from the Clerk of the Circuit Court and is served by the sheriff and/or
by certified mail. There are three sections to the FI notice: the notice, a declaration
of paternity, and a denial of paternity. The notice states that he has been named as
the putative father of a child who is born or about to be born. After receiving the FI
Notice, the putative father has several options:
• Do nothing. If the putative father does not respond to the notice within
thirty days after the receipt of the notice, the court, without further notice
to him, can terminate his rights.
• Return Declaration of Paternity within thirty days of receipt. If a putative
father returns the Declaration of Paternity, he is declaring that he believes
he is the biological father of the child and he intends to preserve his legal
rights to the child. The second step to preserving his rights to the child is to
file a paternity action with the court. This step must be taken within thirty
days of the receipt of notice or, if a baby is not yet born, within thirty days
of the baby’s birth. If a putative father files a paternity action (generally
done with the assistance of an attorney), the birthmother will receive notice
and be informed of a court date for her to appear. If a paternity action is
not filed within thirty days, his rights still may be terminated.
• Return Denial of Paternity within thirty days of receipt. If a putative father
takes this step, he is denying that he is the biological father of the child and
giving up any right to further notice of an adoption.
Putative Father Registry. As a result of the Baby Richard case, in 1994, the Illinois
Legislature created the Putative Father Registry. A birthfather must register within
thirty days of the birth of the child in order to retain his rights. If he does not, his
rights can be terminated. The Illinois Appellate Court has upheld the legality of the
Registry. An adoption agency has an obligation to search the Registry thirty days
after the birth. Forms are completed at The Cradle and sent to the Illinois
Department of Children and Family Services, which maintains the Registry. If the
putative father is registered with the Putative Father Registry, he must be notified
of the adoption proceeding.
• Two to three months after placement the adopting parent(s)’ attorney receives legal
papers from the agency: Agency Consent to the Adoption, Surrenders, Affidavit of
Identification, Denial of Paternity, etc.
• The agency provides notice of the search of the Putative Father Registry (described above)
to the adopting parents’ attorney.
• Attorney for adopting parent(s) files the petition to adopt. The family appears in Court
with their attorney (legally, the child is required to be served). An interim order of adoption
is obtained allowing the child to remain with the adopting parent(s) with an Order for the
agency to supervise and investigate the family. The attorney publishes for any named and
any unknown birthfathers whose whereabouts are unknown.
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Final Judgment of Adoption
• The attorney goes back into Court with the Report of Investigation completed by The
Cradle describing how the family and child are doing. A legal Judgment of Adoption is
issued, giving the adopting parent(s) full rights to the child and changing the child’s name.
The attorney orders a new birth certificate to reflect the child’s new name and change in
legal parent(s).
• There is a statute of limitations on adoption cases. One year after the adoption is finalized
the adoption cannot be overturned for any reason.
International Adoptions:
Adoption of a Child
There are two types of International adoptions. In the first type, there was an adoption in the
foreign country and you return to this country as the adoptive parents of the child; e.g. China,
Russia, Vietnam. In the second type, you have paperwork from the foreign country allowing you to
adopt in this country; e.g. Korea, India. In this second type, you must complete an adoption of the
child in Illinois.
In a case where there was an adoption in the foreign country, you may or may not have to readopt
in Illinois. If both adoptive parents did not travel to the foreign country and see the child before
the foreign adoption was entered, then the child must be readopted in Illinois. If your child has an
IR-4 visa, then a readopt is required for your child to obtain U.S. citizenship.
If both adoptive parents traveled to the foreign country and saw the child before the foreign
adoption was entered and the child has an IR-3 visa, the readoption is optional.
Many adoptive parents, even when readoption is optional, choose to readopt the child in Illinois.
This gives the family a Judgment for Adoption from an Illinois court stating that the child is their
child, and a Record of a Foreign Birth issued by the Illinois Department of Public Health which the
child can use as a birth certificate. This paperwork is often more recognizable and usable than the
paperwork a family receives in the foreign country. This procedure also allows the family to change
the child’s name if it wasn’t changed in the foreign country to the name they want.
Barrable Offenses for DCFS Licensure
Families will need to meet the DCFS licensure requirements to become adoptive parents. All families
will have both federal and state background checks completed as part of that process. There are legal
offenses that may interfere with becoming licensed. If you have a concern about a previous arrest
please find more information about barrable offenses at
http://www.state.il.us/DCFS/docs/CCActStudy.pdf
Adoptive Parents’ Rights and Responsibilities in Illinois
The Department of Children and Family Service of Illinois requires all couples or individuals considering
adoption to be familiar with their rights and responsibilities prior to initiating the adoption process.
You can find those rights and responsibilities at http://www.state.il.us/DCFS/docs/CFS403d.pdf.
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Please review these rights and responsibilities and prepare any questions to discuss with a counselor
during your initial consultation before submitting your registration form.
General Eligibility Requirements
The Cradle serves prospective adoptive parents who are at least 25 years old and are Illinois residents
residing in the greater Chicago area.
We welcome prospective adoptive parents of all religious, racial and ethnic backgrounds. We work
with single men and women, married couples who have been married for at least one year, and samegender
couples who have been in committed, monogamous relationships for at least one year.
For international adoptions, we work with married or heterosexual singles. At least one parent must
be a US citizen for an international adoption.
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