Child Custody

The Indian Child Welfare Act: Child Custody, Adoption, and Guardianship

Published on: October 7, 2015 | Kollias, P.C.

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.

Requests for Mental Health Examination in Illinois Child Custody Cases

Published on: May 4, 2015 | Kollias, P.C.

There is a certain irrationality inherent in contentious divorce and child custody cases. Many people going through such an experience might label their spouse as mentally unstable. If such mental instability is an actual psychological condition, as opposed to mere name calling, it can be particularly relevant when custody of minor children is in dispute.

When it comes to determining a person’s ability to parent minor children, a parent’s mental health may be under high scrutiny. Illinois Supreme Court Rules provide a mechanism through which a party to a divorce or child custody proceeding can call into question the opposing party’s mental health and request that he or she submit to an examination by a mental health professional.

International Custody Disputes: the Hague Convention and Non-Signatory Countries.

Published on: April 19, 2015 | Kollias, P.C.

A man named Abel, his wife, Betty, and their son, Charlie, have lived in Illinois for the past five years. One winter morning, as Abel is walking out of the house to go to work, he notices that Betty is wearing an exceptionally garish Hawaiian shirt and looks like she’s ready for a tropical vacation. When Abel asks her about it, she tells him it is a Hawaiian-themed day at work. Puzzled because she works at Target, he says goodbye anyway and heads off to work. When Abel arrives at home later that night, he finds a note posted to the door that reads: “By the time you read this, your son and I will be halfway to Fiji. We’re not coming home and I never want to see you again.” Frantic, Abel contacts the local police to see what he can do to get his son back home. The police take a report for kidnapping, and tell him he should hire an attorney.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a treaty which seeks to protect children from abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The central purpose of the Hague Convention is to “discourage parents from crossing international borders in search of a more sympathetic forum” in which to litigate custody issues. Marriage of Krol and Kubala.

While many countries throughout the world have signed the Hague Convention treaty, some have not. Click here for a list of countries that have signed the Hague Convention. Referring to the scenario above, Fiji has not signed the treaty. The process to obtain the return of a child differs depending on whether the country has or has not signed the treaty.

Child Custody and Equitable Adoption in Illinois

Published on: April 6, 2015 | Kollias, P.C.

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.