Overview of Notice Requirements To Fathers Prior To Adoption In Illinois
The father has some rights, but they are very limited in Illinois under the kind of circumstances set forth in the ER dialog.
If the mother wants to put up the child for adoption and doesn't want to reveal anything about the father, perhaps with the specific intent of preventing him from interfering with the adoption, she has the practical ability to do so without penalty.
In practice, either an "involved father", or spouse who theoretically could be the father during the course of a marriage, is very likely to receive notice of an adoption and to be required to consent to it, unless parental rights have been terminated or the father raped the mother. But, this isn't the kind of situation present in the ER dialog.
But, an "uninvolved father" (even if uninvolved through no fault of his own because he doesn't know that he has gotten the mother pregnant, for example) is entitled only to a registered letter to his last known address and mention in a newspaper legal classified advertisement, generally as provided by the mother if she chooses to cooperate in providing accurate information.
He has really no recourse if he isn't given the notice he is entitled to under the statute. His pretty much exclusive remedy is to go through the hoops of the Putative Father Registry and then to file a paternity action in court, on very tight timelines, which he has probably never heard of and is in practice incapable of managing to comply with 95%+ of the time.
Unless he was voluntarily and accurately put on the birth certificate by the mother, an "uninvolved father" has a very decent chance of getting no notice at all and not being able to do anything about it even if he later learns of the child's existence, unless the mother is clear that he is the father and acts with more good faith towards him in the notice process than is commonplace.
There are criminal penalties for providing false information about the father, but if the petition is brought by someone other than the mother (as is usually the case) the mother faces no penalties for failing to be forthright on the birth certificate or in cooperating with the people who are filing the adoption petition. She generally need only sign a surrender of the child. She may or may not make any statements under oath or penalty of perjury, depending upon the way the relevant statute is interpreted and there are ways she can avoid much exposure to criminal liability in answering vaguely or inaccurately or claiming not to know. So, a mother has a practical ability to put her child up for adoption without the involvement of an "uninvolved father" without any real penalty for doing so, although there is at least a moral expectation that she will be forthright with the people handling the adoption process when they make an effort to get information about the father.
Unless the father is informed by someone that the mother is pregnant, and he knows which state the mother will give birth to the child in or move to in order to conduct the adoption in, and he is aware of the tough requirements of the putative father's registry, the father has no real reason to know that he has to do anything to prevent his child from being adopted, unless the mother provides his accurate name and address to the people prepare the adoption papers. He has no real clear and obvious way to learn what he has to do in order to prevent an adoption from going through, and is very likely to think he is entitled to more notice than he actually is, and thus to be less pro-active that he needs to be to preserve his paternity rights.
If he's lucky, he could also get notice through a newspaper legal advertisement publications that someone who cares about him (he almost surely doesn't read them) could see - but even if he learns by publication he may have a hard time taking the acts required to give him the right to deny consent to an adoption in time for it to matter legally.
The process is also very unforgiving towards fathers who change their minds, even if they change their minds before the legal adoption process is over.
Generally speaking, a father has no right to have an attorney appointed for him in a case where he is trying to assert his paternity if he is unable to afford one himself.
In addition to the requirements of Illinois law set forth below, there is also generally a requirement to affirmatively state in adoption proceeding if the father is, or might be, a member of a Native American tribe, as that goes to the jurisdictional issue of the applicability of the federal Indian Child Welfare Act, which requires notice, at a minimum, to the father's Indian tribe, even if notice cannot be given to the father.
The Relevant Laws
With regard to Illinois adoption laws there are a couple of statutes that are relevant:
A Petition for adoption must state under oath per § 750 ILCS 50/5(f) (line breaks inserted editorially for ease of readability in this online format and not present in the original):
The names, if known, and the place of residence, if known, of the
parents; and whether such parents are minors, or otherwise under any
The names and addresses of the parents shall be omitted and they shall
not be made parties defendant to the petition if
(1) the rights of the parents have been terminated by a court of
competent jurisdiction, or
(2) the child has been surrendered to an agency, or
(3) the parent or parents have been served with the notice provided in
Section 12a of this Act and said parent or parents have filed a
disclaimer of paternity as therein provided or have failed to file
such declaration of paternity or a request for notice as provided in
said Section, or
(4) the parent is a putative father or legal father of the child who
has waived his parental rights by signing a waiver as provided in
subsection S of Section 10; . . .
Whatever orders, judgments or decrees have heretofore been entered by
any court affecting (1) adoption or custody of the child, or (2) the
adoptive, custodial or parental rights of either petitioner, including
the prior denial of any petition for adoption pertaining to such
child, or to the petitioners, or either of them.
I've omitted provisions related to children with no living parents which involve notice to guardians and next of kin, and provisions related to "standby adoption" which is also beyond the scope of this question. Surrender to an agency is basically putting a child up for adoption before adoptive parents are lined up, and otherwise involves the same surrender or waiver process.
Notice requirements per § 750 ILCS 50/7 are as follows (emphasis and line breaks added):
A. All persons named in the petition for adoption or standby adoption,
other than the petitioners and any party who has previously either
denied being a parent pursuant to Section 12a of this Act or whose
rights have been terminated pursuant to Section 12a of this Act, but
including the person sought to be adopted, shall be made parties
defendant by name, and if the name or names of any such persons are
alleged in the petition to be unknown such persons shall be made
parties defendant under the name and style of "All whom it may
In all such actions petitioner or his attorney shall file, at the
office of the clerk of the court in which the action is pending, an
affidavit showing that the defendant resides or has gone out of this
State, or on due inquiry cannot be found, or is concealed within this
State, so that process cannot be served upon him, and stating the
place of residence of the defendant, if known, or that upon diligent
inquiry his place of residence cannot be ascertained, the clerk shall
cause publication to be made in some newspaper published in the county
in which the action is pending. . . . In the event there is service
on any of the parties by publication, the publication shall contain
notice of pendency of the action, the name of the person to be adopted
and the name of the parties to be served by publication, and the date
on or after which default may be entered against such parties. . . .
B. A minor defendant who has been served in accordance with this
Section may be defaulted in the same manner as any other defendant.
C. Notwithstanding any inconsistent provision of this or any other
law, and in addition to the notice requirements of any law pertaining
to persons other than those specified in this subsection, the persons
entitled to notice that a petition has been filed under Section 5 of
this Act shall include:
(a) any person adjudicated by a court in this State to be the father
of the child;
(b) any person adjudicated by a court of another state or territory of
the United States to be the father of the child, when a certified copy
of the court order has been filed with the Putative Father Registry
under Section 12.1 of this Act;
(c) any person who at the time of the filing of the petition is
registered in the Putative Father Registry under Section 12.1 of this
Act as the putative father of the child;
(d) any person who is recorded on the child's birth certificate as the
(e) any person who is openly living with the child or the child's
mother at the time the proceeding is initiated and who is holding
himself out to be the child's father;
(f) any person who has been identified as the child's father by the
mother in a written, sworn statement, including an Affidavit of
Identification as specified under Section 11 of this Act;
(g) any person who was married to the child's mother on the date of
the child's birth or within 300 days prior to the child's birth.
The sole purpose of notice under this Section shall be to enable the
person receiving notice to appear in the adoption proceedings to
present evidence to the court relevant to whether the consent or
surrender of the person to the adoption is required pursuant to
Section 8 of this Act. If the court determines that the consent or
surrender of the person is not required pursuant to Section 8, then
the person shall not be entitled to participate in the proceedings or
to any further notice of the proceedings.
§ 750 ILCS 50/12a. Notice to putative father
Upon the written request to any Clerk of any Circuit Court . . . a
notice, the declaration of paternity and the disclaimer of paternity
may be served on a putative father in the same manner as Summons is
served in other civil proceedings, or, in lieu of personal
service, service may be made as follows: . . . The Clerk shall
forthwith mail to the putative father, at the address appearing in the
Affidavit, the copy of the notice, the declaration of paternity and
the disclaimer of paternity, by certified mail, return receipt
Consent requirements are as follows (line breaks added editorially, provisions for cases where there is a surrender to an agency and then a later adoption rather than a direct adoption, which are substantially similar, are also omitted):
§ 750 ILCS 50/8. Consents to adoption and surrenders for purposes of
(a) Except as hereinafter provided in this Section consents or
surrenders shall be required in all cases, unless the person whose
consent or surrender would otherwise be required shall be found by the
(1) to be an unfit person as defined in Section 1 of this Act, by
clear and convincing evidence; or
(2) not to be the biological or adoptive father of the child; or
(3) to have waived his parental rights to the child under Section 12a
or 12.1 or subsection S of Section 10 of this Act; or
(4) to be the parent of an adult sought to be adopted; or
(5) to be the father of the child as a result of criminal sexual abuse
or assault as defined under Article 11 of the Criminal Code of 2012;
(6) to be the father of a child who:
(i) is a family member of the mother of the child, and the mother is
under the age of 18 at the time of the child's conception; for
purposes of this subsection, a "family member" is a parent,
step-parent, grandparent, step-grandparent, sibling, or cousin of the
first degree, whether by whole blood, half-blood, or adoption, as well
as a person age 18 or over at the time of the child's conception who
has resided in the household with the mother continuously for at least
one year; or
(ii) is at least 5 years older than the child's mother, and the mother
was under the age of 17 at the time of the child's conception, unless
the mother and father voluntarily acknowledge the father's paternity
of the child by marrying or by establishing the father's paternity by
consent of the parties pursuant to the Illinois Parentage Act of 2015
or pursuant to a substantially similar statute in another state.
A criminal conviction of any offense pursuant to Section 11-1.20,
11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, 12C-5, 12C-10, 12C-35,
12C-40, 12C-45, 18-6, 19-6, or Article 12 of the Criminal Code of 1961
or the Criminal Code of 2012 is not required.
(b) Where consents are required in the case of an adoption of a minor
child, the consents of the following persons shall be sufficient:
(1) (A) The mother of the minor child; and
(B) The father of the minor child, if the father:
(i) was married to the mother on the date of birth of the child or within 300 days before the birth of the child, except for a husband or
former husband who has been found by a court of competent jurisdiction
not to be the biological father of the child; or
(ii) is the father of the child under a judgment for adoption, an order of parentage, or an acknowledgment of parentage or paternity
pursuant to subsection (a) of Section 5 of the Illinois Parentage Act
of 1984 or pursuant to Article 3 of the Illinois Parentage Act of
(iii) in the case of a child placed with the adopting parents less than 6 months after birth, openly lived with the child, the child's
biological mother, or both, and held himself out to be the child's
biological father during the first 30 days following the birth of the
(iv) in the case of a child placed with the adopting parents less than 6 months after birth, made a good faith effort to pay a
reasonable amount of the expenses related to the birth of the child
and to provide a reasonable amount for the financial support of the
child before the expiration of 30 days following the birth of the
child, provided that the court may consider in its determination all
relevant circumstances, including the financial condition of both
biological parents; or
(v) in the case of a child placed with the adopting parents more than 6 months after birth, has maintained substantial and continuous
or repeated contact with the child as manifested by:
(I) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either
(II) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing
so by the person or authorized agency having lawful custody of the
(III) the father's regular communication with the child or with the person or agency having the care or custody of the child, when
physically and financially unable to visit the child or prevented from
doing so by the person or authorized agency having lawful custody of
the child. The subjective intent of the father, whether expressed or
otherwise unsupported by evidence of acts specified in this
sub-paragraph as manifesting such intent, shall not preclude a
determination that the father failed to maintain substantial and
continuous or repeated contact with the child; or
(vi) in the case of a child placed with the adopting parents more than six months after birth, openly lived with the child for a period
of six months within the one year period immediately preceding the
placement of the child for adoption and openly held himself out to be
the father of the child; or
(vii) has timely registered with Putative Father Registry, as provided in Section 12.1 of this Act, and prior to the expiration of
30 days from the date of such registration, commenced legal
proceedings to establish paternity under the Illinois Parentage Act of
1984, under the Illinois Parentage Act of 2015, or under the law of
the jurisdiction of the child's birth; or . . .
(4) Any person or agency having legal custody of a child by court
order if the parental rights of the parents have been judicially
terminated, and the court having jurisdiction of the guardianship of
the child has authorized the consent to the adoption; or
(5) The execution and verification of the petition by any petitioner
who is also a parent of the child sought to be adopted shall be
sufficient evidence of such parent's consent to the adoption.
There are rules governing when a parent may consent to adoption:
§ 750 ILCS 50/9. Time for signing a waiver, consent, or surrender
A. A consent or a surrender signed not less than 72 hours after the
birth of the child is irrevocable except as provided in Section 11 of
B. No consent or surrender shall be signed within the 72 hour period
immediately following the birth of the child.
C. A consent or a surrender may be signed by the father prior to the
birth of the child. Such consent or surrender shall be revoked if,
within 72 hours after the birth of the child, the father who gave such
consent or surrender, notifies in writing the person, agency or court
representative who acknowledged the surrender or consent or any
individual representing or connected with such person, agency or court
representative of the revocation of the consent or surrender.
D. Any consent or surrender signed in accordance with paragraph C
above which is not revoked within 72 hours after the birth of the
child is irrevocable except as provided in Section 11 of this Act. . . .
F. A waiver as provided in subsection S of Section 10 of this Act may
be signed by a putative father or legal father of the child at any
time prior to or after the birth of the child. A waiver is irrevocable
except as provided in Section 11 of this Act.
Consents and waivers have to follow a standard form with warnings in it set forth in Section 10 of the Act. An Affidavit of Identification by the mother has legal effect is she executes it as set forth in the section below, but it is optional and other forms of due diligence are permitted:
§ 750 ILCS 50/11. Consents, surrenders, waivers, irrevocability
(a) A consent to adoption or standby adoption by a parent, including a
minor, executed and acknowledged in accordance with the provisions of
Section 10 of this Act, or a surrender of a child by a parent,
including a minor, to an agency for the purpose of adoption shall be
irrevocable unless it shall have been obtained by fraud or duress on
the part of the person before whom such consent, surrender, or other
document equivalent to a surrender is acknowledged pursuant to the
provisions of Section 10 of this Act or on the part of the adopting
parents or their agents and a court of competent jurisdiction shall so
find. No action to void or revoke a consent to or surrender for
adoption, including an action based on fraud or duress, may be
commenced after 12 months from the date the consent or surrender was
executed. The consent or surrender of a parent who is a minor shall
not be voidable because of such minority.
(a-1) A waiver signed by a putative or legal father, including a
minor, executed and acknowledged in accordance with Section 10 of this
Act, shall be irrevocable unless it shall have been obtained by fraud
or duress on the part of the adopting parents or their agents and a
court of competent jurisdiction shall so find. No action to void a
waiver may be commenced after 12 months from the date the waiver was
executed. The waiver of a putative or legal father who is a minor
shall not be voidable because of such minority.
(b) The petitioners in an adoption proceeding are entitled to rely
upon a sworn statement of the biological mother of the child to be
adopted identifying the father of her child. The affidavit shall be
conclusive evidence as to the biological mother regarding the facts
stated therein, and shall create a rebuttable presumption of truth as
to the biological father only. Except as provided in Section 11 of
this Act, the biological mother of the child shall be permanently
barred from attacking the proceeding thereafter. The biological mother
shall execute such affidavit in writing and under oath. The affidavit
shall be executed by the biological mother before or at the time of
execution of the consent or surrender, and shall be retained by the
court and be a part of the Court's files.
One could read the language above as requiring an Affidavit of Identification, but there is also a fair reading of it that states that it is only one possible means of many to determine who is entitled to notice. In other words "shall execute" could mean that if you execute it at all, it must be in writing and under oath. The "shall be executed by the biological mother before or at the time of execution of the consent or surrender" language seems more firm, but in practice, even if she does sign it under oath, if she simply says "I don't know" there is really no way that anyone can prove anything different in a way that would stick and criminal perjury convictions, in practice, are almost completely non-existent.
The Putative Father registry is subject to the following rules:
§ 750 ILCS 50/12.1. Putative Father Registry
The Department of Children and Family Services shall establish a
Putative Father Registry for the purpose of determining the identity
and location of a putative father of a minor child who is, or is
expected to be, the subject of an adoption proceeding, in order to
provide notice of such proceeding to the putative father. . . .
(a) The Department shall maintain the following information in the
Registry: (1) With respect to the putative father: (i) Name, including
any other names by which the putative father may be known and that he
may provide to the Registry; (ii)Address at which he may be served
with notice of a petition under this Act, including any change of
address; (iii) Social Security Number; (iv)Date of birth; and (v) If
applicable, a certified copy of an order by a court of this State or
of another state or territory of the United States adjudicating the
putative father to be the father of the child.
(2) With respect to the mother of the child: (i) Name, including all
other names known to the putative father by which the mother may be
known; (ii) If known to the putative father, her last address;
(iii)Social Security Number; and (iv)Date of birth.
(3) If known to the putative father, the name, gender, place of birth,
and date of birth or anticipated date of birth of the child.
(4) The date that the Department received the putative father's
registration. . . .
(b) A putative father may register with the Department before the
birth of the child but shall register no later than 30 days after the
birth of the child. All registrations shall be in writing and signed
by the putative father. No fee shall be charged for the initial
registration. The Department shall have no independent obligation to
gather the information to be maintained.
(c) An interested party, including persons intending to adopt a child,
a child welfare agency with whom the mother has placed or has given
written notice of her intention to place a child for adoption, the
mother of the child, or an attorney representing an interested party
may request that the Department search the Registry to determine
whether a putative father is registered in relation to a child who is
or may be the subject to an adoption petition. . . .
(d) A search of the Registry may be proven by the production of a
certified copy of the registration form, or by the certified statement
of the administrator of the Registry that after a search, no
registration of a putative father in relation to a child who is or may
be the subject of an adoption petition could be located.
(e) Except as otherwise provided, information contained within the
Registry is confidential and shall not be published or open to public
(f) A person who knowingly or intentionally registers false
information under this Section commits a Class B misdemeanor. A person
who knowingly or intentionally releases confidential information in
violation of this Section commits a Class B misdemeanor.
(g) Except as provided in subsections (b) or (c) of Section 8 of this
Act, a putative father who fails to register with the Putative Father
Registry as provided in this Section is barred from thereafter
bringing or maintaining any action to assert any interest in the
child, unless he proves by clear and convincing evidence that: (1) it
was not possible for him to register within the period of time
specified in subsection (b) of this Section; and (2) his failure to
register was through no fault of his own; and (3) he registered within
10 days after it became possible for him to file. A lack of knowledge
of the pregnancy or birth is not an acceptable reason for failure to
(h) Except as provided in subsection (b) or (c) of Section 8 of this
Act, failure to timely register with the Putative Father Registry (i)
shall be deemed to be a waiver and surrender of any right to notice of
any hearing in any judicial proceeding for the adoption of the child,
and the consent or surrender of that person to the adoption of the
child is not required, and (ii) shall constitute an abandonment of the
child and shall be prima facie evidence of sufficient grounds to
support termination of such father's parental rights under this Act.
(i) In any adoption proceeding pertaining to a child born out of
wedlock, if there is no showing that a putative father has executed a
consent or surrender or waived his rights regarding the proposed
adoption, certification as specified in subsection (d) shall be filed
with the court prior to entry of a final judgment order of adoption.
(j) The Registry shall not be used to notify a putative father who is
the father of a child as a result of criminal sexual abuse or assault
as defined under Article 11 of the Criminal Code of 2012.
This is limited by two other main provisions:
§ 750 ILCS 50/20b. Time limit for relief from final judgment or order
A petition for relief from a final order or judgment entered in a
proceeding under this Act, after 30 days from the entry thereof under
the provisions of Sec. 2-1401 of the Code of Civil Procedure or
otherwise, must be filed not later than one year after the entry of
the order or judgment.
Illinois Compiled Statutes
Rights and Remedies
Chapter 750. Families Act 55. Contest of Adoptions Act
Current through P.A. 99-0919 (2015-2016)
§ 750 ILCS 55/1.
No attack upon or proceedings contesting the validity of an adoption
decree heretofore entered shall be made either directly or
collaterally because of the failure to serve notice on or give notice
to the reputed father, unless such attack or proceedings shall be
instituted within one year after the effective date of this Act.
(The effective date was in 1949.)