Posted on March 13, 2021

Unfit Parents And Child Custody In Illinois

Some parents are good. Some parents are bad. Some parents are so bad that they are deemed to be unfit parents by an Illinois court of law. A finding that a person is an “unfit parent” essentially strips that parent of their rights to their children. Because of this extreme result of terminating a parent’s rights, unfitness is taken very seriously by Illinois courts.

In Illinois, a finding of unfitness is only done in an adoption or a juvenile case. A parent cannot simply accuse another parent of being unfit and thereby terminate the unfit parent’s rights. Certain steps have to be taken within specific courts determine if a parent is unfit in Illinois.

What Is An Unfit Parent In Illinois?

An “unfit parent” is a legal concept in Illinois’ adoption law. Adoptions are both declaring a non-biological parent to be fit and terminating a biological parent’s rights to their child do their unfitness. While a divorcing couple can accuse each other of being unfit parents, a divorce in Illinois won’t result in a true finding of “unfitness” which terminates a parent’s rights.

There are “no Illinois cases involving findings of unfitness outside the context of proceedings to terminate parental right….

[T]here is a significant difference between a termination case and a case involving the allocation of parenting time. The latter does not permanently sever the parent-child relationship and all the rights that go with it, while the former clearly does…

a judicial determination of parental unfitness cannot be treated as any other finding of fact relevant to a child’s best interests due to the potentially dire consequences that can flow from such a determination.” In re Custody of R.W., 2018 IL App (5th) 170377

Unfitness but be found via a petition for adoption in Illinois.

While “unfitness” may not be a concept in a divorce or parentage proceeding, “fitness” of a parent is extremely relevant in Illinois child custody matters and will be addressed later in the article.

Unfit Parents And Adoption In Illinois

In an Illinois adoption there must be consent from the parent to allow for the adoption. If there is not consent to the adoption from a parent, the Illinois court must find that parent to be unfit in order“[C]onsents or surrenders shall be required in all cases, unless the person whose consent or surrender would otherwise be required shall be found by the court:
        (1) to be an unfit person” 750 ILCS 50/8(a)

There is a laundry list of reasons to declare a parent unfit and therefore unworthy of requiring their consent to the adoption of their own child.

“”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 of unfitness will allow an Illinois court to proceed with an adoption whether the unfit parent agrees to the adoption or not.

Termination Of Parental Rights In Juvenile Court In Illinois

Terminating parental rights without a simultaneous adoption requires the cooperation of the local State’s Attorney’s office.

“Any adult person, any agency or association by its representative may file, or the court on its own motion, consistent with the health, safety and best interests of the minor may direct the filing through the State’s Attorney of a petition in respect of a minor under [the Juvenile Court Act]” 705 ILCS 405/2-13

If a parent’s rights are being terminated by the State of Illinois, that parent needs to be clearly notified.

“If termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under Section 2-29 is sought, the petition shall so state. If the petition includes this request, the prayer for relief shall clearly and obviously state that the parents could permanently lose their rights as a parent at this hearing” 705 ILCS 405/2-13(4)

A parent’s rights will be terminated if the child “has been in foster care…for 15 months of the most recent 22 months…a minor under the age of 2 years has been…determined to be abandoned…[or] the parent is criminally convicted of [a crime of violence or sexual exploitation]” 705 ILCS 405/2-13(4.5)(a)

Even with one of these heinous possibilities present, a parent’s rights will not be terminated if “the child is being cared for by a relative” 705 ILCS 405/2-13(4.5)(a-1)

If a responsible relative is made the guardian of the child, the responsible relative’s connection to the child is through the parent, therefore it’s in the child’s best interests the parent have some continuing connection with the child so as to keep the responsible relative involved in the child’s life.

What Is A Fit Parent In Illinois?

If you’re a parent in Illinois and no court has deemed you “unfit” you will be presumed to be a fit parent.

“It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b)

Illinois divorce and parentage courts don’t really focus on the parents. Illinois divorce and parentage courts focus on the best interests of the children.

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

The U.S. Supreme Court opines that “there is a presumption that fit parents act in the best interests of their children” Troxel v. Granville, 530 US 57 – Supreme Court 2000

Therefore, “fit parents” always come before any other party such as a grandparent or other relative in regards to their rights to their child.

“A fit parent has a superior right to custody of his or her child, which can only be superseded by a showing of good cause to place custody of the child in a third party.” In re SS, 728 NE 2d 1165 – Ill: Appellate Court, 2nd Dist. 2000

An Illinois divorce or parentage court can determine a fit parent’s rights but the fit parent can always exercise those rights.

“There is a rebuttable presumption that a fit parent’s actions and decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation are not harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/602.9(a)(4)

“[A] fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents—not judges—should be the ones to decide with whom their children will and will not associate.” Wickham v. Byrne, 769 NE 2d 1 – Ill: Supreme Court 2002

Furthermore, it can be argued that a fit parent cannot have their visitation rights curtailed or limited so long as they remain deemed a “fit parent.”

“[T]he court [can] not make a finding of serious endangerment, nor would such a finding have been possible [if] the parties stipulated [that a parent] was a fit and proper person” In re Marriage of LaTour, 608 NE 2d 1339 – Ill: Appellate Court, 4th Dist. 1993

Don’t get carried away thinking that a fit parent can never have their time with their children cut or modified, however.

“Eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction.” In re Marriage of LaTour, 608 NE 2d 1339 – Ill: Appellate Court, 4th Dist. 1993

But, then again, one day of missing parenting time might not be a restriction but no overnights could be a restriction. “A termination of visitation is a restriction, as is a prohibition on overnight visitation.” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993

What is an impermissible restriction? In re Marriage of Lee has more to say about that. “A restriction of visitation is an action which limits, restrains, or confines visitation within bounds. A termination of visitation is a restriction, as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction. However, eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction.” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993

If you’re concerned that your child’s other parent is unfit or your child’s other parent has alleged that you are an unfit parent, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.

Share Article on


Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

More about This Topic

Relevant Articles

Call Now Button