Author: Attorney Desk Reference Manual
Last updated: April 2006

Paternity
          Presumed
          By Consent
          Contested
          Statutes of Limitation
          Putative Father Registry
Minor Guardianship
          Who May Be Named 
          Stand-by Guardian 
          Practice Notes
Emancipation of Minor
Minor Requiring Authoritative Intervention
         Authoritative Intervention Required 
          Limited Custody
          Crisis Intervention 
          Petition Filed
Abuse – Neglect – Dependency
          Investigation
          Definition
          Protective Custody
          Temporary Custody Hearing
          Order of Supervision
          Service Plan
          Adjudicatory Hearing
          Dispositional Hearing
          Legal Custody or Guardianship
          Grounds for Termination of Parental Rights
          Rights of Foster Parents
          Practice Notes 

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Paternity

Statute: 

750 ILCS 45/1, et seq.

Presumed

750 ILCS 45/5

Paternity is presumed when:

• Parents are or have been married and the child is born or conceived during the marriage;
• Parents have married after child’s birth and the father has consented to be named as the father on the birth certificate; or
• Parents have signed an acknowledgement of paternity or parentage.

1. The presumption can be rebutted by clear and convincing evidence.

2. The presumption with an acknowledgment of paternity or parentage is conclusive unless the acknowledgement is rescinded.

3. A Father has no rights unless paternity is established.

4. 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.  This became effective on 8-7-98.  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 18^th birthday.

By Consent 

750 ILCS 45/6

• Where parents file a petition through the Department of Healthcare and Family Services (HFS) Child Support Enforcement Division of Circuit Court.  The petition establishes only paternity and support, and is not used where custody or visitation at issue.
• Paternity by consent can be established in the hospital where the child is born.
• Paternity established by consent, either through Public Aid or at the hospital, may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden on the challenging party.

Contested

Filed through the Illinois Department of Healthcare and Family Services (HFS).  Fees and costs are available.  If the putative father contests paternity, blood tests of all parties may be ordered.  The party who requests the blood tests pays.  The putative father is also entitled to counsel throughout, or a public defender (PD) can be appointed through the blood test determination only.  If the putative father unreasonably denies paternity and is found to be the father, he may be required to pay costs.  However if he qualifies for a pauper’s petition, costs will most likely be paid by the HFS.

Statutes of Limitations

750 ILCS 45/8

 

The statute of limitations for a child 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.

Putative Father Registry

Putative fathers may register with the Putative Father Registry before or after the birth of the child.  To register call 1-866-737-3237.  However, to receive notice pending adoption, putative fathers must register within 30 days after the birth of the child.  He must also begin legal proceedings to establish paternity within 30 days of registering.

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Minor Guardianship

Statute:  755 ILCS 5/11-1 et seq.

Venue: If the child is a resident of Illinois, the county where the minor resides. If the child is not a resident of Illinois, the county where his or her real or personal estate is located.

Who May Be a Guardian?

A Guardian must be:

• 18 years old
• Resident of the United States
• Of sound mind 
• Not disabled under 755 ILCS 5/11 (a) (2)
• Not convicted of a felony that involved harming or threatening a minor, elderly, or disabled person
• Found capable and qualified by the court.

Standard
A guardian is appointed based upon the Best Interest of the Child.

Parents
It is a Rebuttable presumption that a parent who wants custody and is willing and able to care for their child is the child's guardian.  The standard used to evaluate is Preponderance of Evidence.

Stand-By Guardian 

755 ILCS 5/11-5

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 are incapacitated or die.  The Court lacks jurisdiction 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.

Practice Notes

Refer uncontested guardianship to Clerk of Court.

Advise client that the following documents will be necessary:

• Certified copy of minor’s birth certificate.
• Guardian must have picture ID.
• If either parent is deceased, the client will need a copy of death certificate.

If the father is on the birth certificate, his consent will be required or service will be attempted.  Service will delay the appointment of a guardian.

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Emancipation of Minor

Statute:  750 ILCS 30/1 et seq.

• The Child must be 16 or 17
• The Parents or guardian must agree according to the statute, but Court occasionally waives
• The Court may completely or partially emancipate minor
• Court must find the minor has:
      - A sound mind
      - The capacity and maturity to manage his or her own affairs
• The emancipation must promote the best interest of the minor and the family

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Minor Requiring Authoritative Intervention (MRAI)

Statute:  705 ILCS 405/3 et seq.  

Authoritative Intervention Required

705 ILCS 405/3-3 

Authoritative intervention is required when the Minor is under 18 and:

• Absent from home without consent, or,
• Beyond control of the parent or guardian and in physical danger, and
• Refuses to return home after crisis services have been offered and the minor and parents cannot agree to alternative placement.

Limited Custody

705 ILCS 405/3-4  

A juvenile officer takes the minor to an agency providing crisis services.  If involuntarily taken, the minor cannot be held for more than 6 hours.  No "police record" is created.

 

Crisis Intervention

705 ILCS 405/3-5 

• Temporary living arrangement and SERVICES are provided.  Counseling services are provided for 21 days if parents consent.
• Temporary living arrangements and services are provided for 48 hours without parents' consent.
• The Agency attempts to settle the conflict between the child and parents or to get them to agree on another voluntary placement.

Petition Filed

If minor and parents cannot agree, The Department for Children and Family Services (DCFS) is called.  The case goes to juvenile court and an MRAI petition is filed.  The Court determines the placement of the minor.  If a parent persuades the Court that child is ungovernable a "no fault guardianship" results but the parent may be found to be neglectful.

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Abuse-Neglect-Dependency

Statute:  705 ILCS 405/2-3 et seq.

 

Investigation

• Investigation is triggered upon a call to an abuse hotline, 1-800-25-ABUSE
• Response can occasionally take up to 3 months because of the backlog, so client must stress urgency
• Social workers, doctors, etc. are "mandated reporters" and are required to report suspected abuse. This does not mean that investigation will be "founded"
• Report will be made by Protective Service worker. 

The Report will be:

• "Indicated" – evidence supports the allegations; or
• "Undetermined" – evidence is inconclusive; or
• "Unfounded" – the evidence does not support allegations. (The Case is then dropped).

A Child may be hospitalized by the worker as part of investigation but DCFS must take protective custody.

If report is "unfounded" or "undetermined," the client has a right to expungement. (See separate section on Expungement of Records).

Definitions 

705 ILCS 405/2-3

• A neglected minor is one under 18 years whose parent or person responsible for his/her welfare does not provide the proper or necessary support, education as required by law, or medical or other remedial care deemed as necessary, including adequate food, clothing, and shelter, or who is abandoned without a proper plan of care; OR whose environment is injurious to his/her welfare; OR any newborn infant with blood or urine containing a controlled substance except substances resulting from medical treatment to mother or infant; OR any minor under 14 years whose parent or person responsible leaves the minor without supervision for an unreasonable period of time without regard to the minor’s mental or physical health, safety, or welfare.  This is determined but not limited to the minor’s age, number of minors left, minor’s special needs, duration of time left, condition of location, etc.
• An abused minor is one whose parent or immediate family member, or anyone responsible for his/her welfare, or anyone in the same family or household, or anyone residing in the same home, or a paramour of the minor’s parent, inflicts or causes to inflict physical injury, not by accident, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function; OR creates a substantial risk of physical injury, not by accident, which would likely cause death, disfigurement impairment of physical or emotional health, or loss or impairment of any bodily function; OR commits or allows any sex offense against the minor; OR commits or allows act(s) of torture; OR inflicts excessive corporal punishment.

705 ILCS 405/2-4

• A dependent minor is one under 18 years who is without a parent, guardian or legal custodian; who is without proper care due to parent, guardian or custodian’s physical or mental disability; OR who is without proper medical or other remedial care, or other care necessary for minor’s well being through no fault, neglect or lack of concern by parent, guardian or custodian provided that no order may be made terminating parental rights, nor may a minor be removed from parents’ custody for longer than 6 months, pursuant to an adjudication as a dependent minor, unless the Court finds it to be in minor’s best interest or the case closes under 5/2-31 (Duration of Wardship and Discharge of Proceedings); OR who has a parent, guardian, or legal custodian who with good cause wishes to be relieved of all residual parental rights and responsibilities, guardianship or custody, and who wants appointment of a guardian of person with power to consent to adoption of minor under 5/2-29 (Adoption; appointment of guardian with power to consent).

Protective Custody 

705 ILCS 405/2-5;  705 ILCS 405/2-6; 705 ILCS 405/2-9

DCFS can take a child from the parents for 48 hours (excluding weekends and holidays) before the case comes to court.  If no hearing is held within 48 hours, the child must be released.

 

Temporary Custody Hearing 

705 ILCS 405/2-10

First court hearing:

• Court must find probable cause to believe neglect/abuse/dependency or the child is released
• May proceed ex parte
• If the court finds an urgent and immediate necessity for custody to protect the minor and that this custody is in the child’s best interest, temporary custody is taken
• Very low evidentiary threshold
• The Child will be placed in temporary custody of the state or privately with a relative pending adjudication
• If there is no urgent and immediate necessity, the child may be released to the parent under a juvenile Order of Supervision, requiring the parent or guardian to participate in services to ameliorate the problematic conditions

Order of Supervision 

705 ILCS 405/2-20 

• Time is limited, but may be extended
• If a parent found in violation, at any time, the court may proceed to a hearing to remove the child

Service Plan

• Plan drawn up by DCFS for the parent if child is removed.  The plan requires completion of identified services before the child can be returned.  Theoretically, once the parent completes this plan the child should be returned but in reality a succession of increasing unsupervised visitation must take place as well.
• The Service Plan should be in hands of the parent within 30 days of removal.  If not, client should call the caseworker or the caseworker’s supervisor.  The client should have the service plan in effect until a decision is made to terminate rights.  A new plan should be drawn up every 6 months at an administrative case review, which the client should attend.  The goals may be return of the child to the home, foster parent placement, relative placement, independence, long-term residential care, substitute care, or adoption.

Adjudicatory Hearing 

705 ILCS 405/2-14, 705 ILCS 405/2-21

• A trial is held to make findings on the allegations in the original petition;
• The adjudicatory hearing is held within 90 days of service.  One 30-day continuance is allowed.  (Date limits are often waived);
• The only issue is whether a minor is abused, neglected, or dependent and, if so, is it the result of physical abuse inflicted by a parent, guardian, or legal custodian;
• If there is insufficient evidence, the case can be dismissed (rare);
• If findings are made, the case is continued for disposition.

Dispositional Hearing 

705 ILCS 405/2-22; 705 ILCS 405/2-23

• Determines whether the child should be made a ward of state or whether the parent is "fit , able and willing" to have the child returned.
• The dispositional hearing is held within 30 days of adjudicatory findings.
• The hearing considers reports made to the court on the progress of the parent toward return of the child, and considers recommendations as to the best interest of the child.
• The Child can be returned under an order of supervision or protection; partially or completely emancipated; or, rarely, the case could be closed.

Legal Custody or Guardianship 

705 ILCS 405/2-27; 705 ILCS 405/2-28; 705 ILCS 405/2-31

• If parent(s) cannot resume care of a child, the minor is made a "ward of the court" or placed under a private guardianship with a relative or occasionally a non-relative, but usually with DCFS.
• Interested persons may apply to the court for a change in custody but the parent must still obtain findings of "fitness" before return of child.
• Parents should be reminded and encouraged that they can still complete the service plan.  The respondent’s attorney can petition for return upon successful completion. 
• All wardships automatically terminate when the minor reaches 19 years of age, except when it is in the best interests of the minor and the public, the court may continue the wardship until the minor reaches the age of 21. 705 ILCS 405/2-31.

Grounds For Termination of Parental Rights 

750 ILCS 50/1 (D)

• Abandonment of the child;
• Failure to maintain reasonable interest, concern or responsibility as to the child’s welfare;
• Desertion for 3 months;
• Substantial neglect of the child or any child in the household which resulted in death of that child;
• Extreme or repeated cruelty to the child;
• 2 or more findings of physical abuse to any child or physical abuse resulting in the death of a child under the Juvenile Court Act;
• Criminal conviction of aggravated battery of the child or criminal conviction resulting from death of a child by physical abuse;
• Failure to protect the child from conditions creating an injurious environment;
• Other neglect or misconduct toward the child;
• Depravity;
• Open and notorious adultery or fornication;
• Addiction to drugs or alcohol for at least one year;
• Failure to maintain reasonable interest, concern or responsibility for a newborn for the first 30 days of life;
• Failure for 1 year to make reasonable efforts to correct conditions which were the basis of removal;
• Failure to make reasonable progress toward return of the child within 9 months after adjudication;
• Child in foster care for 15 out of any 22 month period;
• Evidence of intent to forego parental rights, e.g. failure for 12 months to visit, communicate with the child or agency or plan for the future of the child;
• Failure of a father to legally establish paternity if unmarried to the mother, within 30 days of child’s birth or 30 days within being notified of the child’s birth;
• Failure of a father to make good faith effort to pay reasonable amount of birth expenses and financial support of the child;
• Repeated or continuous failure, although physically and financially able, to provide the child with adequate food, clothing, or shelter; or
• Inability to discharge parental responsibilities due to mental impairment, et seq.

Rights of Foster Parents 

705 ILCS 405/1-5

• Though not appointed guardian or legal custodian or otherwise made a party to the proceeding, any current or previously appointed foster parent has the right to be heard by the court, but does not thereby become a party to the proceeding;
• Any current foster parent of a minor who has been adjudicated an abused or neglected minor under 705 ILCS 405/2-3 or a dependent minor under 705 ILCS 405/2-4 has the right to and shall be given adequate notice of any proceeding where the custody or status of the minor may be changed;
• Any foster parent who is denied the right to be heard may bring a mandamus action immediately or within 30 days; and
• If a minor is adjudicated to be abused or neglected and an application has been filed to restore the minor to any parent, guardian, or legal custodian found by the court to have caused the neglect or abuse, a foster parent may petition the court to have minor placed with him/her, provided that the foster parent:
      - Is the minor’s current foster parent, or
      - Has been the previous foster parent for one year or more, has a foster care license or is eligible for one, and has no findings of abuse or neglect regarding any child.
• If a foster parent had the minor in his/her home for more than one year (on or after July 3, 1994) and if the minor’s placement is being terminated from the home, the foster parent shall have standing and intervenor status except where DCFS or anyone authorized has removed the minor from the foster parent because of a reasonable belief of risk of harm to the minor.
• The Court may grant standing to any foster parent if it is in best interest of the child.

Practice Notes

The Client is entitled to a public defender or court appointed attorney if low income and should request appointment of the lawyer ASAP by the Court.

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