Parents often come to me and ask if the other parent can simply “sign away their rights” and essentially have no further responsibility or right to their child. I’m not sure why they think a signature is all it takes to terminate a parent-child relationship…because that’s definitely not how it works in Illinois.
There are many different ways to relieve a parent of their obligations and rights to their children. Some of those ways are permanent, some of those ways are temporary.
Signing Away Visitation Rights And Child Support In Illinois
By far the simplest way to eliminate duties and visitation with a child is to simply sign an Allocation of Parental Responsibilities where one parent has no decision-making authority in regards to the child and has no time with the child.
In addition, the parents can further sever the parent-child relationship by “reserving child support.”
Both of these options are temporary in nature.
The non-custodial parent can allege a substantial change in circumstances at any time claiming that it would be in the child’s best interests to begin or resume parenting time with the child. This won’t be granted automatically…but after a request for parenting time even the most absent parent will eventually have some kind of parenting time granted.
Child support can be reserved by agreement only if the judge allows for it. Some judges are so concerned for the well-being of the child that they insist on setting child support. Those judges need to be reminded that while there is a “duty of child support” under the Illinois statute, it is not mandatory to set child support in Illinois. “[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a) (emphasis is mine)
Judges still must approve any reservation. You cannot just tell the judge, “This is our agreement. Stamp the order!”
“[P]arents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988
Something that is reserved can be quickly un-reserved by either party.
If child support is established in the future, child support may be set retroactively depending on whether the parents were married or not.
For unmarried parents “[t]he court may order child support payments to be made for a period prior to the commencement of the action. In determining whether and to what extent the payments shall be made for the prior period,” 750 ILCS 46/802
For married parents, child support can only go back as far as the date of filing the Petition For Dissolution of Marriage.
In fact, a third party, Illinois Public Aid, can step in at any time and demand child support on behalf of a parent if that parent is receiving public aid.
A parent receiving public aid in Illinois must seek child support or allow the Department of Healthcare and Family Services to proceed with their child support claim.
“If a parent has a judicial remedy against the other parent to compel child support…the Department of Healthcare and Family Services may request the appropriate law enforcement officer to seek enforcement of the remedy, or of the support order, or a change therein to provide additional support.” 305 ILCS 5/4-1.7
As you can see, these measures are temporary and not even within the control of the parents in the future. To permanently sign away rights as a parent there must either be an adoption or a formal termination of parental rights.
Adoption and Signing Away Parental Rights In Illinois.
“[T]erminating parental rights as shall be had under either [The Adoption Act], the Juvenile Court Act 3 or the Juvenile Court Act of 1987.” 750 ILCS 50/1(D)(h)
A parent can sign away their rights to a child via an adoption in Illinois.
“A consent or a surrender signed not less than 72 hours after the birth of the child is irrevocable” 750 ILCS 50/9(d)
The statute specifies “that by signing this consent I do irrevocably and permanently give up all custody and other parental rights I have to such child” 750 ILCS 50/10
“After an adoption judgment is entered, the biological parents of the child are relieved of all parental responsibilities for the child…adoption constitutes a complete and permanent severance of all legal and natural rights between such parents and children” In re MM, 619 NE 2d 702 – Ill: Supreme Court 1993
“Included in the biological parents’ severed bundle of rights is the right to visitation, which is a form of custody.” Id.
Of course, to terminate parental rights via adoption, there must be an adoptive parent available (usually a step-parent). Without an adoptive parent, the only way to terminate parental rights is through juvenile court.
Terminating Parental Rights In Illinois
Parental rights can not be terminated by consent in juvenile court. A hearing is required by a juvenile court and that hearing must find evidence of abuse or neglect by the parent whose rights are being terminated.
“If the court finds that the minor is abused, neglected, or dependent, the court shall then determine and put in writing the factual basis supporting that determination, and specify, to the extent possible, the acts or omissions or both of each parent, guardian, or legal custodian that form the basis of the court’s findings. That finding shall appear in the order of the court.” 705 ILCS 405/2-21
After such a hearing with the above findings “the court determines in accordance with therules of evidence for dispositional proceedings, that: termination of parental rights…is in the best interest of the child” 705 ILCS 405/2-21(5)(iv)(B)
After “the court finds that it is in the best interest of the minor that parental rights be terminated…based upon clear and convincing evidence, that a parent is an unfit person as defined in Section 1 of the Adoption Act, may terminate parental rights” 705 ILCS 405/2-29
A finding that the parent is “unfit” is required to terminate rights. That requires the court to find one of the below fact patterns:
”Unfit person” means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption. The grounds of unfitness are any one or more of the following…
(a) Abandonment of the child.
(a-1) Abandonment of a newborn infant in a hospital.
(a-2) Abandonment of a newborn infant in any setting where the evidence suggests that the parent intended to relinquish his or her parental rights.
(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.
(c) Desertion of the child for more than 3 months next preceding the commencement of the Adoption proceeding.
(d) Substantial neglect of the child if continuous or repeated.
(d-1) Substantial neglect, if continuous or repeated, of any child residing in the household which resulted in the death of that child.
(e) Extreme or repeated cruelty to the child.
(f) There is a rebuttable presumption, which can be overcome only by clear and convincing evidence, that a parent is unfit if:(1) Two or more findings of physical abuse have been entered regarding any children under Section 2-21 of the Juvenile Court Act of 1987, the most recent of which was determined by the juvenile court hearing the matter to be supported by clear and convincing evidence; or(2) The parent has been convicted or found not guilty by reason of insanity and the conviction or finding resulted from the death of any child by physical abuse; or(3) There is a finding of physical child abuse resulting from the death of any child….
(g) Failure to protect the child from conditions within his environment injurious to the child’s welfare.
(h) Other neglect of, or misconduct toward the child;…
(i) Depravity [a list of crimes follow that automatically make a parent depraved].
(j) Open and notorious adultery or fornication.
(k) Habitual drunkenness or addiction to drugs, other than those prescribed by a physician…
(l) Failure to demonstrate a reasonable degree of interest, concern or responsibility as to the welfare of a new born child during the first 30 days after its birth…
(o) Repeated or continuous failure by the parents, although physically and financially able, to provide the child with adequate food, clothing, or shelter.
(p) Inability to discharge parental responsibilities supported by competent evidence from a psychiatrist, licensed clinical social worker, or clinical psychologist of mental impairment, mental illness or an intellectual disability…
(r) The child is in the temporary custody or guardianship of the Department of Children and Family Services, the parent is incarcerated as a result of criminal conviction at the time the petition or motion for termination of parental rights is filed…
(t) A finding that at birth the child’s blood, urine, or meconium contained any amount of a controlled substance…” 750 ILCS 50/1
“[A] finding adverse to the parent on any one ground is sufficient to support a subsequent termination of parental rights.” In re CW, 766 NE 2d 1105 – Ill: Supreme Court 2002
Termination of parental rights may not be a total bar to child support, however.
“It may be the case that a support obligation will be found even in the absence of a parent-child relationship.” In re Marriage of Adams, 133 Ill.2d 437, 445, 141 Ill.Dec. 448, 551 N.E.2d 635 (1990)
“Illinois has a strong interest in protecting and promoting the welfare of its children” In re Parentage of MJ, 787 NE 2d 144 – Ill: Supreme Court 2003
“The intent of the legislature to provide parental support for all minor children, whether marital or nonmarital, is very clear. Legislative common sense dictates that if parents do not support their children, an already strained State welfare system must do so.” Dept. of Public Aid ex rel. Cox v. Miller, 586 NE 2d 1251 – Ill: Supreme Court 1992
The other parent or the Department of Healthcare and Family Services may still pursue child support against a parent whose rights have been terminated under this theory. There are no Illinois appeals cases providing clarity over whether a child support claim against a parent with terminated rights would be allowed or not.
If you have questions about signing away parental rights in Illinois, please reach out to my Illinois family law firm in Chicago, Illinois to arrange a free consultation with an experienced Chicago divorce attorney.