HB4675 94TH GENERAL ASSEMBLY

LRB094 16332 AJO 51583 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4675

Introduced 1/12/2006, by Rep. Constance A. Howard

SYNOPSIS AS INTRODUCED:

750 ILCS 50/13

from Ch. 40, par. 1516

Amends the Adoption Act. Provides that an interim order of custody may be entered for up to 30 days (now, 10 days) if a sworn petition establishes (now, states) there is an immediate danger to the child and that irreparable harm will result if notice is given to the parent or guardian. Provides a description of irreparable harm that includes the inability of a petitioner to obtain medical insurance for the child or the absence of a temporary legal custodian for the child.

A BILL FOR

AN ACT concerning adoption.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Adoption Act is amended by changing Section 13 as follows:

(750 ILCS 50/13) (from Ch. 40, par. 1516)

Sec. 13. Interim order. As soon as practicable after the filing of a petition for adoption the court shall hold a hearing for the following purposes:

A. In other than an adoption of a related child or an adoption through an agency, or of an adult:

(a) To determine the validity of the consent, provided that the execution of a consent pursuant to this Act shall be prima facie evidence of its validity, and provided that the validity of a consent shall not be affected by the omission therefrom of the names of the petitioners or adopting parents at the time the consent is executed or acknowledged, and further provided that the execution of a consent prior to the filing of a petition for adoption shall not affect its validity.

(b) To determine whether there is available suitable temporary custodial care for a child sought to be adopted.

B. In all cases except standby adoptions:

(a) The court shall appoint some licensed attorney other than the State's attorney acting in his or her official capacity as guardian ad litem to represent a child sought to be adopted. Such guardian ad litem shall have power to consent to the adoption of the child, if such consent is required.

(b) The court shall appoint a guardian ad litem for all named minors or defendants who are persons under legal disability, if any.

(c) If the petition alleges a person to be unfit pursuant to the provisions of subparagraph (p) of paragraph D of Section 1 of this Act, such person shall be represented by counsel. If such person is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint as counsel for him either the Guardianship and Advocacy Commission, the public defender, or, only if no attorney from the Guardianship and Advocacy Commission or the public defender is available, an attorney licensed to practice law in this State.

(d) If it is proved to the satisfaction of the court, after such investigation as the court deems necessary, that termination of parental rights and temporary commitment of the child to an agency or to a person deemed competent by the court, including petitioners, will be for the welfare of the child, the court may order the child to be so committed and may terminate the parental rights of the parents and declare the child a ward of the court or, if it is not so proved, the court may enter such other order as it shall deem necessary and advisable.

(e) Before an interim custody order is granted under this Section, service of summons shall be had upon the parent or parents whose rights have not been terminated, except as provided in subsection (f). Reasonable notice and opportunity to be heard shall be given to the parent or parents after service of summons when the address of the parent or parents is available. The party seeking an interim custody order shall make all reasonable efforts to locate the parent or parents of the child or children they are seeking to adopt and to notify the parent or parents of the party's request for an interim custody order pursuant to this Section.

(f) An interim custody order may be granted without notice upon presentation to the court of a written petition, accompanied by an affidavit, establishing stating that there is an immediate danger to the child and that irreparable harm will result to the child if notice is given to the parent or parents or legal guardian. Upon making a finding that there is an immediate danger to the child if service of process is had upon and notice of hearing is given to the parent or parents or legal guardian prior to the entry of an order granting temporary custody to someone other than a parent or legal guardian, the court may enter an order of temporary custody which shall expire not more than 30 10 days after its entry. Every ex parte custody order granted without notice shall state the harm injury which the court sought to avoid by granting the order, the irreparable harm injury that would have occurred had notice been given, and the reason the order was granted without notice. Irreparable harm pursuant to this subsection (f) shall include, but is not limited to, the inability of a petitioner to obtain dependent medical insurance coverage for the child or the absence of a temporary legal custodian for the child. The matter shall be set down for full hearing before the expiration of the ex parte order and will be heard after service of summons is had upon and notice of hearing is given to the parent or parents or legal guardian. At the hearing the burden of proof shall be upon the party seeking to extend the interim custody order to show that the order was properly granted without notice and that custody should remain with the party seeking to adopt during the pendency of the adoption proceeding. If the interim custody order is extended, the reasons for granting the extension shall be stated in the order.

C. In the case of a child born outside the United States or a territory thereof, if the petitioners have previously been appointed guardians of such child by a court of competent jurisdiction in a country other than the United States or a territory thereof, the court may order that the petitioners continue as guardians of such child.

D. In standby adoption cases:

(a) The court shall appoint a licensed attorney other than the State's Attorney acting in his or her official capacity as guardian ad litem to represent a child sought to be adopted. The guardian ad litem shall have power to consent to the adoption of the child, if consent is required.

(b) The court shall appoint a guardian ad litem for all named minors or defendants who are persons under legal disability, if any.

(c) The court lacks jurisdiction to proceed on the petition for standby adoption if the child has a living parent, adoptive parent, or adjudicated parent whose rights have not been terminated and whose whereabouts are known, unless the parent consents to the standby adoption or, after receiving notice of the hearing on the standby adoption petition, fails to object to the appointment of a standby adoptive parent at the hearing on the petition.

(d) The court shall investigate as needed for the welfare of the child and shall determine whether the petitioner or petitioners shall be permitted to adopt.

(Source: P.A. 90-14, eff. 7-1-97; 90-349, eff. 1-1-98; 91-572, eff. 1-1-00.)