Frequently Asked Questions About Unrelated Adoptions
- 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 home study 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 are the procedures involved in a birth parent consenting to the adoption of his or her child? When are 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?
- Are there any tax benefits available for adopting a child?
What Types Of Adoption Are Available To Illinois Residents?
The following categories of adoptions are available:
- 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 may be involved, counseling can be provided through an independent counselor. Identities of all parties may be kept confidential.
- 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 preapproved by that agency. The birth parent may designate the family that he or she wants to adopt the child. The adoption of a foster child from the Illinois Department of Children and Family Services (DCFS) is considered an agency adoption, and the adopting parents may be eligible for an adoption subsidy that pays for their attorney’s fees, a monthly stipend and the child’s medical care.
- 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 home study 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.
- Interstate – When the child 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 home study, 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.
- Intercountry – When the child resides in a country different from the adopting family, the adoption is intercountry. The adopting family must complete a home study 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 “readopt” the child in a legal proceeding in the United States to confirm the validity of the foreign adoption. In a few countries such as the Philippines and Pakistan, the adoption must be completed in the United States. As of April 1, 2008, adoptions from countries that have signed The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption must comply with new rules and procedures (see www.adoption.state.gov for further information).
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 a domestic 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.
What Laws Apply To Adoptions?
Adoption law is primarily state law, and every state has its own adoption statute. 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 and the Indian Child Welfare Act impact on adoptions.
Is A Preplacement Home Study Required In Order To Adopt?
A home study is not required in a private adoption where everyone involved resides in Illinois. A home study is necessary to adopt through an agency and in an interstate adoption, including a private adoption. A home study and approval from the federal authorities is required in an intercountry adoption. Note that there is always an investigation, which includes criminal background checks, home visits and required disclosures of financial and medical information, in every unrelated adoption in Illinois.
What Expenses Can Be Legally Paid By The Adopting Parents?
Illinois law allows adopting parents to pay their own legal fees, agency fees and 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 birth parent’s attorney’s fees for any amount exceeding $1,000. Adopting parents may also give a gift to birth parents as long as the gift’s value does not exceed $200. 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 also might 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 DCFS.
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.
What Are The Procedures Involved In A Birth Parent Consenting To The Adoption Of His Or Her Child? When Are Consents Final? Under What Circumstances Can A Consent Be Revoked?
In Illinois, a birth parent’s consent to adoption (or surrender, in an agency adoption) must be signed in front of a judge, designated court social services personnel, or a representative of DCFS or a licensed child welfare agency. A birth mother must wait a minimum of 72 hours after the child’s birth before signing a consent or surrender. A birth father may sign 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-hour 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 waiver, 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 one year from signing the consent or surrender to challenge its validity. In addition, a legal parent of a child may sign a designated consent or surrender in which the intended adoptive parents are identified. If the adoption is not completed, the birth parent may request that the child be returned or be contacted to select alternative adoptive parents.
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:
- Marrying the mother or being listed on the child’s birth certificate;
- Living with and supporting the mother and child,
- Obtaining a court judgment of paternity; or
- 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.
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.
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 can be entered on the same day that the family appears in court. In contrast, related adoptions and adoptions where the child is being adopted from foster care generally take four to eight weeks to complete.
When Can Adoptive Parents Get A Birth Certificate And Social Security Number For Their Child?
The Illinois Department of Public Health (IDPH) issues an amended birth certificate or a record of foreign birth 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. Adult adoptees 21 and older may obtain an uncertified copy of their original birth certificate, unless the birth parent has requested that identifying information about that birth parent be withheld, in which case the certificate will have some information removed. 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. While the adoption is pending, adopting parents may obtain an adoption tax identification number (ATIN) from the Internal Revenue Service. An ATIN is good for two years and can be used in place of a Social Security number until the adoption is final.
Are There Any Tax Benefits Available For Adopting A Child?
Depending on the adoptive parent’s income, there is a federal adoption tax credit available for each child to defray the cost of adoption. In 2018, the credit was a maximum of $13,810 per child and the maximum income to be eligible for the credit was $247,140, but these amounts vary each year. Adoptive parents may also be eligible for a stipend from their employers that is excludable from their taxable income. See Topic 607 on the IRS website for further information ( www.irs.gov/taxtopics/tc607.html). In addition, Illinois now has a state tax credit of $2,000 for a child less than one and $5,000 if the child is one years old or over.
Discuss Your Adoption Options With A Qualified Lawyer
If you are interested in adoption, schedule a consultation with an experienced attorney to discuss your family’s options. Contact Shelley B. Ballard PC at 312-981-0272, or email our firm today. We can meet with you at either downtown Chicago or Evanston offices.