Articles Posted in Adoption

In most child custody, adoption, and foster care placement cases, Illinois state law governs.  However, Congress passed a federal law in 1978 called the Indian Child Welfare Act, also known as “ICWA,” which creates a different burden of proof and set of standards for Native American children in child custody, adoption, and foster care placement cases.  ICWA sets forth the guidelines for removal of an “Indian child” from his or her Indian family, which imposes a significantly higher burden.


ICWA guidelines are not necessarily focused on the best interests of the child. Rather, ICWA was passed “to protect Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”


The federal government recognized the large-scale break-up of Native American families, as Native American children were systematically being removed from their homes and placed with families who had no connection to the particular Native American culture.  Essentially, Congress passed this law to protect the culture and family unit of Native Americans, setting a higher burden for removal of Native American children from their families.  ICWA also has a jurisdictional component such that if ICWA applies to a case, it may be transferred out of the state court and into tribal courts.  The tribal courts are perceived as a preferable venue for Indian families determined to combat the removal of children.  Finally, ICWA allows for the appointment of an attorney for the Native American parent, something not typically provided for in custody cases, aside from juvenile abuse and neglect proceedings.


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Adoption is one part of family law that doesn’t get much press, perhaps because it isn’t as contentious as the division of assets and debts in a divorce or as emotional as a hotly contested custody battle.  Whatever the reason, adoption is typically an area of lightness amidst the often challenging aspects of other family law issues.


However, for an adoption to be legal and proper, parents must take necessary steps. An adoption petition must be filed, and the court must enter a judgment of adoption, terminating the biological parents’ rights and finding that the adoption is in the best interests of the child.


There is an exception to the rule, called “equitable adoption,” which typically arises in probate cases where there is a contested will. In the case of DeHart v. DeHart, the Supreme Court of Illinois was faced with determining when equitable adoption should be recognized in Illinois. The DeHart Court found that “equitable adoption theory should be recognized under the right circumstances even in the absence of a statutory adoption or a contract for adoption.” The Court further held that requirements for an equitable adoption claim are: (1) a plaintiff must prove intent to adopt; (2) a plaintiff must show that the decedent acted consistently regarding such intent in forming a “close and enduring familial relationship” with the plaintiff.

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