Author: Revisions contributed by Kate Shank & Steve Pick, Legal Assistance Foundation of Metropolitan Chicago
Last updated: September 2011
Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles on IllinoisLegalAid.org: Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.
Paternity is presumed when:
The presumption can be rebutted by clear and convincing evidence.
The presumption with an acknowledgment of paternity or parentage is conclusive unless the acknowledgement is rescinded within 60 days of signing or the establishment of an administrative or judicial proceeding concerning the child, whichever occurs first.
A father has no rights unless paternity is established.
An action to declare the non-existence of a parent and child relationship may be brought after an adjudication of paternity by the man adjudicated to be the father pursuant to the above presumptions if, as a result of DNA tests, it is discovered that the man is not the natural father of the child. The action must be brought within 6 months of the effective date or no more than 2 years after the petitioner obtains actual knowledge of relevant facts, whichever is later. However, the 2 year period shall not extend beyond the child’s 18th birthday.
If paternity is contested, DNA tests of parties and the child may be the ordered. Typically, the party who requests the test pays, but the court may divide the costs between the parties. The putative father is also entitled to counsel throughout the proceeding, or publically funded counsel may be appointed regarding the establishment of paternity or issues of child support. If the putative father unreasonably denies paternity and is found to be the father, he may be required to pay costs. However if he is found to be low-income, costs will mostly likely be paid by the government. If a party disputes the results of the DNA test, that party may obtain a separate test, so long as the statutory testing standards are followed.
The statute of limitations to assert parentage is two years after the child reaches the age of majority, unless initiated through a public agency, which will be barred two years after the agency ceased to provide assistance to the child.
However, this limitation does not apply if the party was prevented from visiting, providing support for, or communicating with the child by the other parent or another person or the party lacked knowledge of child’s birth.
The statute of limitations to deny parentage must be brought before the child turns 18 and within 2 years of when the petitioning party learns of the relevant facts.
A putative father is a father that was not married to the child’s mother at the time of the child’s birth and has not been legally established as the father.
In order to prevent a child from being adopted without the putative father’s input, putative fathers must register with the Putative Father Registry no later than 30 days after the birth of the child. He must also begin legal proceedings to establish paternity within 30 days of registering. Registration can be done by calling (866) 737-3237, by mail, or in person in Springfield.
If the child is a resident of Illinois, the venue is the county where the minor resides. If the child is not a resident of Illinois, the venue is the county where his or her real or personal estate is located.
A guardian must be:
A guardian is appointed based upon the Best Interest of the Child.
It is presumed that a parent is willing and able to make decisions concerning the care of a child but this presumption may be rebutted by a preponderance of evidence.
A parent may designate in a will or other writing a qualified person to assume care of a minor or unborn child if the parents become incapacitated or die. The designation must be witnessed by at least 2 credible witnesses, age 18 or older, neither of whom is the standby guardian.
The Court lacks jurisdiction to appoint a standby guardian where a minor has another able and willing parent whose whereabouts are known, unless such parent consents or fails to object after receipt of notice.
A parent may designate in writing, without court approval, a qualified person to assume the short-term care of a minor or unborn child. The document must be dated, and identify the parent, child, and short-term guardian. It must be signed by the parent and short-term guardian and witnessed by at least 2 additional credible witnesses, age 18 or older. The appointment is effective immediately or on a date certain as listed and extends for 365 days, unless the document specifies the termination of the short-term guardianship at an earlier specified date or event. A short-term guardianship can be revoked at any time.
A short-term guardian is inappropriate where the child has another able and willing parent whose whereabouts are known unless such parent consents by signing the document of appointment.
Refer uncontested guardianships to the Clerk of Court.
Advise clients that the following documents will be necessary:
Advise the client to have the following information:
A court must find the minor:
The emancipation must promote the best interest of the minor and the family.
Authoritative intervention is required when the minor is under 18 and:
Law enforcement may take the minor into limited custody if the officer reasonably believes that the minor is absent from home without parental consent or is beyond control of the parent and in physical danger.
After taking limited custody, the officer must tell the minor the reason for the limited custody and attempt to notify the parent of the location of the minor. If the minor consents the officer shall return or release the minor to the parent. The officer may also facilitate connecting the minor to any necessary supportive or crisis services.
If the parent cannot be reached, the minor refuses return to the parent, or an assisted return is geographically unreasonable, then the officer shall take the minor to an agency providing crisis services. If involuntarily taken, the minor cannot be held for more than 6 hours. Limited custody is not an arrest and no "police record" is created.
Crisis intervention services are provided to a minor taken into limited custody or who requests such services. The officer or agency staff may also facilitate connecting the minor to any necessary supportive or crisis services.
An agency may temporarily shelter a minor if the agency tries to get the minor back home as soon as possible. The minor cannot be sheltered for more than 48 hours without parental consent unless the agency documents that it was unsuccessful in notifying a parent. If the parent cannot be notified, the minor may be sheltered for up to 21 days.
If the parent will not let the minor return home and will not agree on an alternative placement, a report of neglect may be made to the Department of Children and Family Services (DCFS). If DCFS determines the minor is not neglected but is a physical danger, DCFS shall either have the minor admitted to a mental health facility, ask law enforcement to take custody, or make other appropriate action to safeguard the minor and/or others living in the minor’s home.
ANCRA has its own definitions of “Abused child” and “Neglected child.” 325 ILCS 5/3.
An investigation is triggered by a call to the statewide abuse hotline, 1-800-25-ABUSE.
Social workers, doctors, teachers, and any occupation that works with children are "mandated reporters," and are required to call the hotline if they have “reasonable cause to believe that a child may be abused or neglected.” Mandated reporters are immune from tort liability for calling the hotline unless the conduct is willful and wanton.
DCFS Department of Child Protection investigates the hotline call. It has 60 days to complete the investigation unless extended for good cause.
Practice tip: The parents or caretaker of a minor should be advised that anything they say to DCFS may be used against them in court in any abuse/neglect/dependency proceeding and in any criminal proceeding that may result from a related police investigation. Refusal to cooperate with DCFS investigation is not, by itself, legally sufficient to “indicate” a report or for DCFS to take protective custody of the minor, but may increase the practical risk of both.
At the conclusion of the investigation, the report will be classified as either:
Indicated reports remain on the central register maintained by DCFS for 5-50 years, depending on the seriousness of the allegations, and are a barrier to employment involving children.
An indicated parent or caretaker has the right to an administrative appeal hearing at which DCFS must prove the allegations in the report by a preponderance of the evidence. An appeal must be requested by parent or caretaker within 60 days of receiving written notice that report has been indicated. The hearing must be held and decision made by the Director of DCFS within 90 days of the appeal request. Judicial review of the Director’s decision is according to the Administrative Review Law. If the appeal is successful, the report is expunged from the central register.
Child care workers alleged to have abused or neglected a minor are entitled to a conference with DCFS before the conclusion of the investigation, and an expedited appeal hearing process, in which the decision must be made within 35 days of the appeal request.
An indicated report does not necessarily mean that DCFS will take protective custody of the minor and seek to put the minor in the foster care system. It maintains discretion to offer “intact” services to the family or to take no further action. In any case in which DCFS does wish to put the minor in the foster care system it must request the local county state’s attorney to file a petition under the Juvenile Court Act in the Circuit Court.
Those who are neglected include:
Whether the minor was left without regard for the mental or physical health, safety, or welfare of that minor or the period of time was unreasonable shall be determined by considering the following factors, including but not limited to:
A minor shall not be considered neglected for the sole reason that the minor has been relinquished in accordance with the Abandoned Newborn Infant Protection Act.
Those who are abused include any minor under 18 years of age whose parent or immediate family member, or any person responsible for the minor's welfare, or any person who is in the same family or household as the minor, or any individual residing in the same home as the minor, or a paramour of the minor's parent:
Those who are dependent include any minor under 18 years of age:
This section does not apply to a minor who would be included herein solely for the purpose of qualifying for financial assistance for himself, his parent or parents, guardian or custodian or to a minor solely because his or her parent or parents or guardian has left the minor for any period of time in the care of an adult relative, who the parent or parents or guardian know is both a mentally capable adult relative and physically capable adult relative, as defined by this Act.
Both ANCRA and the Juvenile Court Act authorize DCFS, a physician, or a law enforcement officer to take physical custody of a minor without a court order and over the objection of a parent or caretaker if there is reason to believe that the minor cannot be cared for at home or in the custody of the person responsible for the minor's welfare without endangering the minor's health or safety, and there is insufficient time to seek a court order.
Within 48 hours of taking protective custody– not including weekends or holidays – the minor must be brought before a judicial officer for a temporary custody hearing or released to the parents or caretaker.
Upon filing a petition to adjudicate the minor abused, neglected, or dependent pursuant to Section 2-13 of the Juvenile Court Act, the State’s Attorney may move the court to grant temporary custody of the minor to DCFS or a third party. This requires a three-part showing:
The Circuit Court has jurisdiction to make custody determinations regarding the minor pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 750 ILCS 36/101 et seq.
Proceedings on the petition to adjudicate the minor abused, neglected or dependent are civil in nature. If you practice in Cook County, you should note that Cook County local rules and orders restrict pre-adjudication discovery.
Indigent parties must be appointed counsel. 705 ILCS 405/1-5(1).
The minor must be appointed counsel and/or a guardian ad litem. In Cook County, the guardian ad litem must be an attorney. Id.
Hearing/trial on the petition to adjudicate the minor abused, neglected, or dependent must commence within 90 days of service of process on the parents or caretaker, unless waived.705 ILCS 405/2-14(b).
Certain special rules of evidence apply. There is no right to a jury trial. 705 ILCS 405/2-18(1)
If the parent or caretaker prevails at adjudication, the minor is returned and the case is dismissed.
If the State prevails, the case proceeds to a dispositional hearing (Note: an adjudication order, by itself, is not final and appealable).
A dispositional hearing must be held within 30 days of the conclusion of the adjudication hearing. The court determines if it is in the best interest of the minor that the minor be made a ward of the court:
If the court makes the minor a ward of the court and finds the parents fit, it may restore custody of the minor to them, subject to conditions;
If the court makes the minor a ward of the court and determines that parents are unfit, unwilling or unable to care for the minor, it may place the minor in the guardianship of a relative, other person, or DCFS (Note-a finding that a parent is “unfit” in this context is not necessarily the same as a finding that a parent is an “unfit parent” in a termination of parental rights proceeding. See below).
Upon entry of a dispositional order, the case, including the adjudication findings, may be appealed.
When DCFS is made guardian at the dispositional hearing, the court must review the case every six months and enter a “permanency goal.” The hierarchical list of available permanency goals is found at 705 ILCS 405/2-28(2). If a parent is involved in the case, the initial goal is usually to return the minor home to the parent.
DCFS develops a service plan based on the permanency goal set by the court. The court cannot order DCFS to provide a specific service, but may find that the services are not reasonably calculated to achieve the permanency goal and order DCFS to amend the service plan.
For federal funding purposes, every 12 months the Court must enter a finding that DCFS has made “reasonable efforts” to achieve the permanency goal set by the court.
Any person interested in the minor may apply to the court for a change in custody or guardian.705 ILCS 405-2-28(4).
If the parent, minor or foster parent disagrees with tasks or services in the service plan or feels they are insufficient, an administrative appeal process and judicial review is available. See generally 89 Ill. Adm. Code 337.10 et seq.
The parent or caretaker may apply to the court at any time for a new dispositional hearing, and for findings that the parent or caretaker is fit, willing, and able to care for the minor and should be returned home.
In practical terms, this typically occurs upon satisfactory completion of the service plan.
The State may choose to file a petition to terminate the parents’ rights and free the minor for adoption. 705 ILCS 405/2-28(4)(b).
Any ground of parental unfitness in the Adoption Act may be alleged. Most commonly seen are grounds that the parent has failed to make reasonable efforts to correct the conditions that brought the minor into the DCFS system or reasonable progress toward return home. A parent must make reasonable efforts and reasonable progress in each nine month period following adjudication or risk termination of rights. Failure to substantially fulfill the obligations under the service plan is considered failure to make reasonable efforts.750 ILCS 50/1.D(m).
Hearing on the petition to terminate parental rights is bifurcated. Parental unfitness must be proved by clear and convincing evidence.705 ILCS 405/2-29(2). If the Court finds the parent to be unfit, the case proceeds to hearing on whether it is in the minor’s best interest to be freed for adoption. At the “best interest” phase, the burden of proof is preponderance of the evidence. There is no right to a jury trial in either phase.
The order terminating parental rights and authorizing the guardian to consent to the minor’s adoption is immediately appealable. Supreme Court Rule 663. The order is automatically stayed pending appeal, but there is no right to visitation pending appeal. Supreme Court Rule 305(e). All such appeals are subject to the accelerated disposition schedule found in Supreme Court Rule 311.
Upon a finding by the court that it is no longer in the minor’s or public’s best interest for the minor’s wardship to continue, the court may close the case and order all proceedings under the Juvenile Court Act discharged. If the minor has been placed in the guardianship or legal custody of a third-party instead of being returned to the parents, the guardianship or legal custody arrangement may be extended beyond the order closing the case.
If the court does not close the case before a minor turns 19, wardship terminates by operation of law on the minor’s 19th birthday. However, if the court finds it to be in the best interest of the minor and the public, the minor’s wardship may be extended to age 21.
A closed case may be reopened prior to a minor turning 18 when it was closed with the establishment of a guardianship over the minor pursuant to the Probate Act of 1975 and is in the minor’s best interest. 705 ILCS 405/2-33(1).
For former wards whose case was closed subsequent to the former ward’s 18th birthday, or emancipated minors under 18, a closed case may be reopened when it is in the former ward’s best interest. 705 ILCS 405/2-33(2).
A current or former foster parent always has the right to be heard by the court, but does not thereby become a full party.
A current foster parent has the right to adequate notice of any proceeding where the custody or status of the minor may be changed.
If the permanency goal is other than return home to a parent, the foster parent may apply to court for private guardianship of the minor.705 ILCS 405/2-28(4)(a).
The minor’s current foster parent, or former foster parent if the minor was with the former foster parent for more than one year, may intervene and seek custody of the minor when any motion is filed seeking to restore custody of the minor to a parent or caretaker found to have abused or neglected the minor. 705 ILCS 405/1-5(2)(b).
If the minor’s placement with the current foster parent is being terminated, and the minor has been placed with the foster parent for more than one year, the foster parent is entitled to intervene. 705 ILCS 405/1-5(2)(c).
The court may grant standing to any foster parent if it is in the best interest of the minor. 705 ILCS 405/1-5(2)(d).
Foster parents may also utilize the service appeal process. See generally 89 Ill. Adm. Code 337.10 et seq.
In abuse, neglect, or dependency proceedings involving an Indian child, ICWA preempts state law. An Indian child is a minor who is (a) a member of a federally-recognized Indian tribe or (b) who is eligible for membership in a federally-recognized Indian tribe and who is the biological child of a member of an Indian tribe. Congress enacted ICWA in response to the breakup of Indian families by state child welfare authorities.
Generally, proceedings concerning an Indian child should be removed from the state court to the tribal court, unless there is a showing of good cause why they should not be removed or the tribe declines jurisdiction.
If the case remains in the state court, ICWA requires the child to be placed with an extended relative (as defined by the tribe) or in an Indian foster home at all times, unless there is a showing of good cause why it is not possible.
The parent of an Indian child’s rights may be terminated only if the state is able to show, beyond a reasonable doubt, that the parent’s continued custody is likely to result in serious emotional or physical damage to the child.
In this case, DCFS agreed not to remove or refuse to return a child to a parent solely because the parent is poor, homeless, or a victim of domestic violence, unless there is imminent danger to the child’s safety.
As part of the consent decree concluding the case, DCFS promulgated rules and implemented procedures to assist poor parents, including housing advocacy and cash assistance.
In this case, DCFS agreed to provide Spanish-speaking investigators and caseworkers in abuse, neglect, and dependency proceedings.
DCFS also agreed to place Spanish-speaking children with a Spanish-speaking foster parent.
Practice note: Burgos only requires a Spanish-speaking foster home, not a foster home from a similar ethnic or cultural background. With the exception of Indian children, federal law prohibits consideration of race, color or national origin in foster placement decisions.
DCFS policy directs caseworkers never to view or address youth with sexual orientation or gender identity concerns as deviant or pathological. Further, it directs caseworkers not to seek treatment or services for the purpose of changing a youth’s sexual orientation or identity.
DCFS has no policy prohibiting people who identify as LGBTQ from becoming foster parents or prospective adoptive parents. However, DCFS policy is to attempt to place a child in a foster home with the same religious views as the parents, or the child if the child is over twelve.
Some agencies that contract with DCFS to provide casework services have religious objections to working with people who identify as LGBTQ as foster or prospective adoptive parents.
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