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| [ Engrossed ] | [ Enrolled ] | [ Senate Amendment 001 ] |
90_SB0619
750 ILCS 50/13 from Ch. 40, par. 1516
Amends the Adoption Act. Provides that, upon 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
biological parent or parents, the court may enter an order
without notice granting temporary custody for 10 days, with a
full hearing to be held on the matter before the expiration
of the order, but not before service of summons and notice of
hearing are given to the biological parent or parents.
Effective immediately.
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1 AN ACT to amend the Adoption Act by changing Section 13.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Adoption Act is amended by changing
5 Section 13 as follows:
6 (750 ILCS 50/13) (from Ch. 40, par. 1516)
7 (Text of Section before amendment by P.A. 89-686)
8 Sec. 13. Interim order. As soon as practicable after the
9 filing of a petition for adoption the court shall hold a
10 hearing for the following purposes:
11 A. In other than an adoption of a related child or an
12 adoption through an agency, or of an adult:
13 (a) To determine the validity of the consent,
14 provided that the execution of a consent pursuant to this
15 Act shall be prima facie evidence of its validity, and
16 provided that the validity of a consent shall not be
17 affected by the omission therefrom of the names of the
18 petitioners or adopting parents at the time the consent
19 is executed or acknowledged, and further provided that
20 the execution of a consent prior to the filing of a
21 petition for adoption shall not affect its validity;
22 (b) To determine whether there is available
23 suitable temporary custodial care for a child sought to
24 be adopted.
25 B. In all cases:
26 (a) The court shall appoint some licensed attorney
27 other than the State's attorney acting in his official
28 capacity as guardian ad litem to represent a child sought
29 to be adopted. Such guardian ad litem shall have power to
30 consent to the adoption of the child, if such consent is
31 required;
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1 (b) The court shall appoint a guardian ad litem for
2 all named minors or defendants who are persons under
3 legal disability, if any.
4 (c) If the petition alleges a person to be unfit
5 pursuant to the provisions of subparagraph (p) of
6 paragraph D of Section 1 of this Act, such person shall
7 be represented by counsel. If such person is indigent or
8 an appearance has not been entered on his behalf at the
9 time the matter is set for hearing, the court shall
10 appoint as counsel for him either the Guardianship and
11 Advocacy Commission, the public defender, or, only if no
12 attorney from the Guardianship and Advocacy Commission or
13 the public defender is available, an attorney licensed to
14 practice law in this State.
15 (d) If it is proved to the satisfaction of the
16 court, after such investigation as the court deems
17 necessary, that termination of parental rights and
18 temporary commitment of the child to an agency or to a
19 person deemed competent by the court, including
20 petitioners, will be for the welfare of the child, the
21 court may order the child to be so committed and may
22 terminate the parental rights of the parents and declare
23 the child a ward of the court or, if it is not so proved,
24 the court may enter such other order as it shall deem
25 necessary and advisable.
26 (e) Before an interim custody order is granted
27 under this Section, service of summons shall be had upon
28 the parent or parents whose rights have not been
29 terminated, except as provided in subsection (f).
30 Reasonable notice and opportunity to be heard shall be
31 given to the parent or parents after service of summons
32 when the address of the parent or parents is available.
33 The party seeking an interim custody order shall make all
34 reasonable efforts to locate the parent or parents of the
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1 child or children they are seeking to adopt and to notify
2 the parent or parents of the party's request for an
3 interim custody order pursuant to this Section.
4 (f) An interim custody order may be granted without
5 notice upon presentation to the court of a written
6 petition, accompanied by an affidavit, stating that there
7 is an immediate danger to the child and that irreparable
8 harm will result to the child if notice is given to the
9 biological parent or parents. Upon making a finding that
10 there is an immediate danger to the child if service of
11 process is had upon and notice of hearing is given to the
12 biological parent or parents prior to the entry of an
13 order granting temporary custody to someone other than a
14 biological parent, the court may enter an order of
15 temporary custody which shall expire not more than 10
16 days after its entry. Every ex parte custody order
17 granted without notice shall state the injury which the
18 court sought to avoid by granting the order, the
19 irreparable injury that would have occurred had notice
20 been given, and the reason the order was granted without
21 notice. The matter shall be set down for full hearing
22 before the expiration of the ex parte order and will be
23 heard after service of summons is had upon and notice of
24 hearing is given to the biological parent or parents. At
25 the hearing the burden of proof shall be upon the party
26 seeking to extend the interim custody order to show that
27 the order was properly granted without notice and that
28 custody should remain with the party seeking to adopt
29 during the pendency of the adoption proceeding. If the
30 interim custody order is extended, the reasons for
31 granting the extension shall be stated in the order.
32 C. In the case of a child born outside the United States
33 or a territory thereof, if the petitioners have previously
34 been appointed guardians of such child by a court of
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1 competent jurisdiction in a country other than the United
2 States or a territory thereof, the court may order that the
3 petitioners continue as guardians of such child.
4 (Source: P.A. 89-644, eff. 1-1-97.)
5 (Text of Section after amendment by P.A. 89-686)
6 Sec. 13. Interim order. As soon as practicable after the
7 filing of a petition for adoption the court shall hold a
8 hearing for the following purposes:
9 A. In other than an adoption of a related child or an
10 adoption through an agency, or of an adult:
11 (a) To determine the validity of the consent,
12 provided that the execution of a consent pursuant to this
13 Act shall be prima facie evidence of its validity, and
14 provided that the validity of a consent shall not be
15 affected by the omission therefrom of the names of the
16 petitioners or adopting parents at the time the consent
17 is executed or acknowledged, and further provided that
18 the execution of a consent prior to the filing of a
19 petition for adoption shall not affect its validity.;
20 (b) To determine whether there is available
21 suitable temporary custodial care for a child sought to
22 be adopted.
23 B. In all cases:
24 (a) The court shall appoint some licensed attorney
25 other than the State's attorney acting in his or her
26 official capacity as guardian ad litem to represent a
27 child sought to be adopted. Such guardian ad litem shall
28 have power to consent to the adoption of the child, if
29 such consent is required.;
30 (b) The court shall appoint a guardian ad litem for
31 all named minors or defendants who are persons under
32 legal disability, if any.
33 (c) If the petition alleges a person to be unfit
34 pursuant to the provisions of subparagraph (p) of
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1 paragraph D of Section 1 of this Act, such person shall
2 be represented by counsel. If such person is indigent or
3 an appearance has not been entered on his behalf at the
4 time the matter is set for hearing, the court shall
5 appoint as counsel for him either the Guardianship and
6 Advocacy Commission, the public defender, or, only if no
7 attorney from the Guardianship and Advocacy Commission or
8 the public defender is available, an attorney licensed to
9 practice law in this State.
10 (d) If it is proved to the satisfaction of the
11 court, after such investigation as the court deems
12 necessary, that termination of parental rights and
13 temporary commitment of the child to an agency or to a
14 person deemed competent by the court, including
15 petitioners, will be for the welfare of the child, the
16 court may order the child to be so committed and may
17 terminate the parental rights of the parents and declare
18 the child a ward of the court or, if it is not so proved,
19 the court may enter such other order as it shall deem
20 necessary and advisable.
21 (e) Before an interim custody order is granted
22 under this Section, service of summons shall be had upon
23 the parent or parents whose rights have not been
24 terminated, except as provided in subsection (f).
25 Reasonable notice and opportunity to be heard shall be
26 given to the parent or parents after service of summons
27 when the address of the parent or parents is available.
28 The party seeking an interim custody order shall make all
29 reasonable efforts to locate the parent or parents of the
30 child or children they are seeking to adopt and to notify
31 the parent or parents of the party's request for an
32 interim custody order pursuant to this Section.
33 (f) An interim custody order may be granted without
34 notice upon presentation to the court of a written
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1 petition, accompanied by an affidavit, stating that there
2 is an immediate danger to the child and that irreparable
3 harm will result to the child if notice is given to the
4 biological parent or parents. Upon making a finding that
5 there is an immediate danger to the child if service of
6 process is had upon and notice of hearing is given to the
7 biological parent or parents prior to the entry of an
8 order granting temporary custody to someone other than a
9 biological parent, the court may enter an order of
10 temporary custody which shall expire not more than 10
11 days after its entry. Every ex parte custody order
12 granted without notice shall state the injury which the
13 court sought to avoid by granting the order, the
14 irreparable injury that would have occurred had notice
15 been given, and the reason the order was granted without
16 notice. The matter shall be set down for full hearing
17 before the expiration of the ex parte order and will be
18 heard after service of summons is had upon and notice of
19 hearing is given to the biological parent or parents. At
20 the hearing the burden of proof shall be upon the party
21 seeking to extend the interim custody order to show that
22 the order was properly granted without notice and that
23 custody should remain with the party seeking to adopt
24 during the pendency of the adoption proceeding. If the
25 interim custody order is extended, the reasons for
26 granting the extension shall be stated in the order.
27 C. In the case of a child born outside the United States
28 or a territory thereof, if the petitioners have previously
29 been appointed guardians of such child by a court of
30 competent jurisdiction in a country other than the United
31 States or a territory thereof, the court may order that the
32 petitioners continue as guardians of such child.
33 (Source: P.A. 89-644, eff. 1-1-97; 89-686, eff. 6-1-97;
34 revised 1-14-97.)
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1 Section 95. No acceleration or delay. Where this Act
2 makes changes in a statute that is represented in this Act by
3 text that is not yet or no longer in effect (for example, a
4 Section represented by multiple versions), the use of that
5 text does not accelerate or delay the taking effect of (i)
6 the changes made by this Act or (ii) provisions derived from
7 any other Public Act.