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Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.


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Years ago adoption was not common and many people thought of biological children and adopted children differently. For example, under Illinois probate laws, adopted children were not included as "children" unless a will specifically said that they were included. Now adoption is common, and attitudes and the law have changed. Adopted children are now treated as children of the adopting parents in the same way that biological children are. (Nevertheless, if you have an old will or a will prepared by an "old-time" lawyer, you may want to check to see if it excludes adopted children, especially if you or someone in your family has adopted a child.)

What is involved legally in an adoption within the United States and internationally? In Illinois the process differs depending on whether or not the adopted child is related to the adopting parents, however, some rules apply to all adoptions: the adopting parent(s) may be single, married or unmarried (including same-sex couples), married persons must both adopt the child, and if the child is over fourteen years old, he or she must consent to the adoption.

To begin the adoption proceeding, a Petition is filed with the court. When the Petition is filed, both biological parents and the child must be served with process. (Yes, even a baby must be served, which generally involves taking the baby to the Sheriff's office so the baby can be "served" with the papers.)

The biological mother and father must also be served. Regarding fathers, Illinois has two categories -- legal fathers and "putative" fathers. A legal father is a man who was married to the mother when the child was born or who has been determined by a court to be the child's father. A putative father is anyone else who may be the father. Both legal fathers and putative father must receive notice of the adoption proceeding.

Putative fathers may enter their information on the Putative Father Registry. This registry lists the name and contact information for men who believe they are the fathers of children. This list must be checked and notice of an adoption be given to any man on the list claiming to be a child's father. If the father cannot be located, notice can be given by publication in a local newspaper.

Although biological parents must be given notice of the proceedings, they do not necessarily have to consent to the adoption. If the mother consents to the adoption, her consent must be given more than three days after she gives birth to the child. Once consent it properly given, it cannot be revoked. If a parent does not consent, the court must find that the parent is unfit in order for the adoption to go forward. A parent is unfit if he or she abandons the child, neglects the child, is cruel to the child or is convicted of certain crimes of depravity, such as murder.

After all parties have been served, there is a hearing where the judge will award temporary custody of the child to the adopting parents. At that time, a licensed agency must inspect the adoptive home unless the adoption is a related adoption. (A related adoption means the adoption of a child where at least one of the adoptive parents is related to the child, such as an adoption by a step-parent, grandparent, etc.) After the investigation has been completed and the child has been living on the adoptive home for at least six months, the adoption can be finalized by the court. At that time, a new birth certificate is normally issued for the child, naming only the adoptive parents. The original birth certificate is sealed and can be seen only with a court order.

If a biological parent wants to find his or her child in the future (or vice-versa), he or she can register under the Illinois Adoption Registry and Medical Information Exchange. If both parties consent, the Illinois Department of Public Health will release the information.

International adoptions involve much more complicated procedures. Usually, the child must be adopted in his or her home country both for foreign law purposes and to enable the child to receive a visa to enter the United States. After the child is brought to his or her new home, there is a second adoption under the Illinois law. This second adoption requires an investigation by an agency just like any other unrelated adoption. Most international adoptions must be handled through an agency which is licensed by the child's home country.

Many other laws affect adoption. For example, the Indian Child Welfare Act of 1978 requires that notice be given to the tribe if the child is a member of an Indian tribe or is eligible to be a member. Therefore, it is best to work with a licensed agency and/or an attorney to make sure your adoption goes smoothly and you are able to enjoy time with your new child.
Posted in: August, 2006
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