The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

Contested Adoptions: Arguments, Factors, And Preferences
By Anthony Abear


All flowers are not blooming in paradise- in cases where an adoptive family gleefully anticipates the celebration of a joyous event, they are often confronted with the ugly prospect of protracted litigation. Adoptions are commonly thought of as a joyous event, a time for familial and communal celebration. Very often adoption proceedings are neither controversial nor hotly contested. However, many adoptions are far from agreed, settled proceedings. In many instances, the natural parent is less than happy with the prospect of not only losing custody of his child, but also with having his parental rights to that child terminated.

Many adoption proceedings can cause interested persons to be fiercely at odds with various other players interested in the proceedings: the natural mother and the natural father may not be consenting to the adoption; the prospective adoptive family or families may be diametrically opposed to the natural parents or also may be opposed to another prospective adoptive family; a natural parent’s family member may contest the adoption of the child to another family member or to a non-relative family; a grandparent may oppose granting the adoption to a specific family member or to a non-related family member; a foster parent who has cared for the adoptive child now seeks to adopt – which is contrary to parental or family wishes; the adoptive child’s court appointed guardian ad litem may be recommending the adoption to any one of several prospective adoptive families or may recommend none of them at all; the guardian of the child (when it is not the parent) may not agree with anyone; and the court as the trier of fact, keeper of the law, ultimately will by necessity displease a variety of litigants.

Adoption proceedings are statutory proceedings and not available at common law, and strict compliance with the statute is required in order to enable a court to properly consider a requested adoption.1 As such, a petitioner contemplating an adoption- either contested or agreed- must carefully review the Illinois Adoption Act2 that identifies the necessary components and prerequisites to an adoption.

This article will first view the landscape for proceeding on a petition for adoption, then next focus on issues in contested adoptions in which a litigant challenges the preliminary basis to allow the adoption (the court’s jurisdiction, the adoptive consent form, the volition to consent to the adoption by the natural parent, attempts to circumvent a pending adoption). This article will next identify the factors and preferences the court uses to consider adoptive placement. Lastly it will examine the attacks on adoption judgments. Saved for another day will be the issues in judicial determinations of unfitness of parents and other such saucy topics.

The Petition for Adoption: Two Hurdles

In every adoption case, there must be a termination of the natural parents’ parental rights by reason of a consent by the natural parents, or by a finding of unfitness of those parents, and only then will the court make a determination of whether the best interests of the adoptive child would be served by allowing the adoption petition.3 The first hurdle a prospective adoptive parent must overcome is this relieving or relinquishing of parental rights from the natural parent. This is accomplished in one of two ways: the consent to adopt agreed to by the natural parent, or a finding of unfitness made by a court against the natural parent.

A consent to adopt is dictated by statutory form.4 In it, the natural parent relinquishes all rights to his child. He may do so by specifically consenting to an adoption (where the natural parent normally chooses and agrees to specific adoptive parents), or where he surrenders his rights of parentage to an agency or guardian who will be court authorized to thereafter consent to an adoption (and where the natural parent often does not normally know nor attempt to direct the choice of adoptive parents). Once the natural parent gives his consent, that parent’s wishes are not controlling in the assessment or critique of any prospective adoptive parents.5

In the alternative, a court may relieve a natural parent of his parental rights through a termination of parental rights hearing. A proceeding to involuntarily terminate parental rights is a drastic measure that may only be brought under the statutory authority of the Juvenile Court Act6 or the Adoption Act.7 In so doing, a court shall be provided clear and convincing evidence that the natural parent is an unfit parent.8

Upon the completion of the first hurdle, a petitioner must next face the second hurdle: the best interest hearing. A best interest hearing is the opportunity that the court has to consider the legal presumptions in favor of granting an adoption to certain individuals, and to likewise consider all statutory and caselaw relevant factors, both in favor of as well as mitigating against the directing that an adoption be completed.9

A petitioning adoptive couple in an unfitness case may mistakenly believe that after completing the first hurdle- that is, that the natural parent has been found unfit by a competent court- that the proceedings are all thence downhill. And perhaps often that is that case. However, even if the court grants a judgment for adoption there is no absolute assurance that the adoptive petitioners will be the parties chosen. When adoptive parents file a petition based on unfitness and not on consent, there is no guarantee that they will be the ones who are allowed to adopt.10 It is possible that other adoptive parents will be selected.11

Under an analogous situation, where there are multiple petitions to adopt by two or more prospective adoptive families, the court may choose to reject all petitions and direct that the children remain with a guardian. In the case of In re Petition of Schomer,12 the children of deceased parents were sought to be adopted by two separate sets of petitioners- by both their maternal grandparents and also by the paternal grandparents of one of the children. In coming to its conclusion to deny both petitions for adoption and continue the children under guardianship of one of the sets of grandparents, the court reasoned that,

"…the children are lucky to have four people who care enough about them to contend for their physical custody. The adoption of the children by either set of grandparents would terminate the relationship the children have enjoyed with the other set. A denial of both adoption petitions was, under the circumstances, in the best interests of the children."13

In that case specific scenario, the court relied upon the premise that in an adoption, the resulting change in parentage results in a complete and permanent severance of the parental rights between a biological parent and the children.14 Because of that severance, the adoptive parents could lawfully choose to prohibit any contact between the children and the opposing prospective adoptive grandparents.15 Of significant fact is that the court noted the hostility between the adoptive parties that could further alienate the families, and if an adoption were to be allowed, would empower the victorious family to alienate the children from the non-adoptive family.

Contesting the Adoption Petition

In contesting a petition to adopt, the opposing litigant is likely to make one or more of several arguments in support of his position in opposition. Of those, this article will divide the arguments into three categories: preliminary arguments to contest the adoption, factors and preferences the court is to consider, and attacks upon the adoption judgment.

A. Preliminary Arguments to Contest the Adoption

1.) Contesting the Personal Jurisdiction of the Court

In order for the court considering an adoption petition to proceed on the merits, it is fundamental that the court must have both subject matter and personal jurisdiction. Subject matter jurisdiction refers to a court’s power to hear and determine cases of adoption, and the power to deal with the general subject involved in that action.16 On that issue, regarding adoption in Illinois courts, there is seldom controversy. In contrast, personal jurisdiction is the acquisition by a court of the ability to apply its subject matter jurisdiction to an individual.17

Subject matter jurisdiction is in issue where a litigant to a contested adoption contends that the court failed to obtain proper jurisdiction over him, a necessary party. Where a court never properly obtained the necessary personal jurisdiction over the biological father, the court’s judgment order for adoption was void ad initio.18 In the case of In re the Adoption of E.L., the biological father of a baby girl discovered that his absent wife who had custody of the daughter had placed the daughter up for adoption.19 In doing so, the wife had misrepresented the paternity of the child, and had substituted another man’s name in place of the natural father’s name on the statutorily mandated Affidavit of Identification.20

In that case, to further frustrate matters, the adoption agency and adoptive petitioner’s attorney were both contacted by the natural father’s legal aid attorney prior to the final judgment order of adoption being entered, but both the adoption agency and the adoptive petitioner’s attorney failed to inform the court and the guardian ad litem of their contacts with the purported natural father.21 The natural father never received notice of the proceedings and the court entered a judgment of adoption. In voicing its decision finding the adoption void ab initio, the court found that the actions of the adoption agency and of the adoptive petitioner’s attorney were fraud committed upon the court by knowingly concealing the natural father’s name and address, and the fraud constituted a lack of personal jurisdiction by the court to enter any order.22

A dissimilar result can occur where the dilatory actions of the natural father accounted for his failing to properly register with the Putative Father Registry within 30 days of his child’s birth. Such was the case in In re the Petition of K.J.R. where the natural father of a child failed to register with the state’s Putative Father Registry, the court found no finding of fraud, and the court then refused to allow the putative father right to intervene in the adoption proceedings.23 In reaching its conclusion, the court made significant note that the putative father was on notice as to his paternity because he was certainly aware that he had sexual relations with the mother during the time when the child "could have been conceived."24 Despite the mother’s misrepresentations to the father that he was not the father, the father previously expressed his opinion that he "believed he could be the father" and admitted to sexual relations with the mother without the benefit "of any prophylaxis."25

The distinction between these two cases (other than the fraud in the former case) hinges on the legal application of the Putative Father Registry.26 The Putative Father Registry is a statutorily enacted registry intended to help determine the identity and location of a minor child who is, or is expected to be, the subject of an adoption proceeding. In E.L., the natural father did not have to register with the Putative Father Registry because he fell within the exception of that statute because a state court identified that natural father in an order of parentage27, and therefore that natural father’s consent was necessary for the entry of an adoption judgment.

In K.J.R. no such exception applied to the natural father. In fact, that court in its analysis pointed out that even if the court accepted that the natural father had suffered an alleged fraud upon him by the mother, that father still failed to comply with the Putative Father Registry in that he failed to register within ten days after he became aware of the birth.28 The subsequent failure to register likewise acted to bar that father from maintaining any action to assert any interest in the child.

2.) Contesting the Validity of the

Consent Form

A party opposed to the entry of an adoption judgment might likewise seek to contest the validity of the forms upon which consents are delineated and signed by the natural parent. These arguments arise where a litigant suggests that there are technical mistakes or shortcomings in the consent documents. Most of these attempts fail, however, where the court can find substantial compliance with the statutory requirements and the natural parent knowingly and affirmatively signed the consent.29 The Second District Appellate Court specifically addressed the issue when it pronounced that it is the compliance with the formalities of acknowledgement which is necessary to the validity of the consent, and the purpose of such formalities is to emphasize the solemnity of the step being taken and to provide protection for the parties to an adoption.30 The court notes that it and numerous other courts have held that exact conformity with the statutory language for the form of consent is not required if the irrevocable nature of such an act was made sufficiently clear and if the parents understood the consequences of their actions.31 Based on this judicial interpretation, most contests to the validity of a consent form are likely to fail where some evidence supports that the natural parent was made aware of the gravity of the event and the effect of signing the document.

3.) Contesting the Volition of the Consent

Contrary to contesting the validity of the form, a litigant may seek to challenge the willfulness and volition of that natural parent’s completion of the consent form. By doing so, that parent argues that he fell victim to wrongful acts that caused him, or forced him, to consent to the adoption, and based upon his suffering this wrongful act or acts he is entitled to revoke his consent. His attempt at revocation, however, is limited specifically by the Adoption Act only to the allegations of fraud and/or duress:

"A consent to adoption or standby adoption by a parent, including a minor, executed and acknowledged in accordance with the provisions of Section 8 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…" (emphasis added.)32

In order for an alleged aggrieved party to properly submit his claim that his consent was unlawfully procured, he must bear the burden of showing by clear and convincing evidence that the fraud or duress occurred and must have been accomplished by the person before whom the consent or surrender is acknowledged.33

In order to constitute duress, mere annoyance or vexation will not suffice; rather there must be such compulsion affecting the mind as shows that the execution of the consent is not the voluntary act of the natural parent.34 In contrast, in order to constitute fraud, the aggrieved must have been told a misrepresentation, and that misrepresentation must be of a material fact and must have been relied upon by the parent in executing the consent or surrender document.35

Illinois courts have failed to find fraud or duress where the natural father claimed that he was "confused" as to the situation36, where there was "a lot of tension" in the room37, or where the natural parent claims to have been deceived into thinking that the adoption was only for purposes of enabling the adoptive child to have medical coverage so as to benefit from surgery on a "crippled foot" and that the adoptive parents would then assuredly transfer the adoption back to the natural parent after the operation was completed.38

Illinois courts have found instances supporting a finding that fraud or duress occurred upon the natural parent and which necessitated the vacating of the consent. In In re Adoption of Kindgren, the Second District Appellate Court determined that where the natural mother of a child given up for adoption had received $10,000 from the mother of one of the adoptive parents after the completion of the adoption, the payment of the money acted to vitiate the adoption and rendered void the consent by the natural mother.39

Illinois courts have likewise found evidence of duress where a 16 year old minor child who became an unwed mother was forced by her parents to consent to the adoption of her baby.40 In that case of Sims v. Sims, the parents of the young mother reportedly prohibited the young mother from allowing the newborn into their home, was forbidden from seeing the child, and conditioned their parental love of their 16 year old child and their fulfillment of their legal obligation to support her during her minority on her consenting to the adoption.41 In reaching its decision, the court found that the actions of the mother’s parents indisputably constituted duress as a matter of law and which in turn justified the vacating of the consent.42

4.) Circumventing a Pending Adoption Proceeding

Parents certainly have the right to seek to consent to the adoption of their child by a specific party, and may privately place their children for adoption even with nonrelated parties.43 Therefore, if a parent knows that an adoption proceeding against the parent’s wishes is or may be just around corner, then that parent may seek to circumvent the anticipated contested adoption to an adoptive parent that would otherwise not be to a natural parent’s choosing by consenting to a specific adoption to a person of the parent’s choosing. In so doing, a parent that expects would be unable to defend a petition for adoption that alleges that parent’s unfitness may be able to transfer the parentage of his child or children to his brother, mother, or close cousin. And if successful, the practical effect may be that the natural parent may lose very little other than the title of "legal parent" if the transfer is nothing more than a hollow transfer of title.

It is possible that a natural parent may at times be able to accomplish this transfer, but it is unlikely that the event will pass the eyes of the court without close scrutiny. In In re Marriage of T.H., a criminal court convicted the natural father of two children of murdering the mother of those children and sentenced him to 55 years in the Illinois Department of Corrections. The children’s guardian ad litem filed a petition under the Juvenile Court Act to terminate the father’s parental rights based on depravity. Within a month of that filing against him, the father had consented to the adoption of his children by his brother and sister-in-law and they filed their petition to adopt. Sometime thereafter, the deceased mother’s sister likewise filed her petition to adopt seeking to terminate the father’s rights based on unfitness.44

In denying the efforts of that father to direct the parentage and custody of his children, the appellate court determined that despite the father’s efforts, neither the Adoption Act nor the Juvenile Court Act mandated that a subsequently filed petition to adopt with parental consent be heard prior to a petition to terminate parental rights.45 The court addressed the father’s efforts by stating,

"It is obvious that father has sought in the trial court, and continues in this court to seek, to control the placement of his children with the adoptive parents of his choice rather than allow the court to choose the placement which is in the best interests of the children."46

In its assessment and holding, the court thwarted the efforts of the natural father to circumvent a termination and adoption proceeding.

In a similar situation, the court in In re the Adoption of L.R.B. denied the efforts of an incarcerated father to dictate the placement of his child by consenting to an adoption by his father’s uncle and that uncle’s wife, where the child was in the custody of the Department of Children and Family Services (DCFS) and who was a ward of the court.47

In justifying its denial of father’s efforts to orchestrate a specific adoption, the court in L.R.B. echoed the reasoning of the court in T.H. by stating that a parent whose parental rights were about to be terminated may not execute consents in favor of his relatives in an attempt to control the placement of his children and to prevent the court from choosing the placement which the court believed to be in the best interest of the children.48 In addition, the court in L.R.B. further reasoned that the father was legally unable to consent to the adoption because such an adoption would require a physical transfer of custody from the parent to the adoptive parties, and where the child was a ward of the court the parent is unable to authorize that transfer.49

So while a parent normally has an unfettered ability to consent and direct the adoption of his child to a specific party, he will be prevented from doing so where the child is a ward of the court, and also where the motives of the natural parent are suspected of seeking to thwart anticipated or pending termination of parental rights proceedings. In such cases the parent’s actions will either be disallowed, or at a minimum will be closely scrutinized.

B. Factors and Preferences the Court shall Consider

A court has to its benefit a variety of guidelines for analysis during the adoption proceedings. Those guidelines include that when a petition for adoption has been denied or vacated the court must reexamine custody and must incorporate use of the "superior rights doctrine."50 Also, n the event that the petition is not denied and parental rights are terminated by consent or unfitness, the court shall consider the "foster parent preference" as incorporated by Section 50/15.1 of the Adoption Act.51 And when determining the best interests of a child and whether to grant an application for adoption, the court (and the guardian) use "factors in determination" in its analysis to determine that child’s best interest.

1.) Superior Rights Doctrine

If the natural parent contesting an adoption succeeds in having the adoption petition denied or vacated, in addition to having won a significant battle he may have gained a tactical legal advantage over any party otherwise seeking custody of his child. According to the Adoption Act, in the event a judgment for adoption is vacated or a petition for adoption is denied, the court shall promptly conduct a hearing as to the temporary and permanent custody of the minor child who is the subject of the proceedings pursuant to Part VI of the Illinois Marriage and Dissolution of Marriage Act.52

In such an event, the natural parent will have to his benefit a doctrine known as the superior rights doctrine. Simply stated, this doctrine declares that the natural parent has superior rights to custody of his child as against others.53 This doctrine requires a third party to demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and to show that it is in the child’s best interests that the third party be awarded care, custody, and control of the child.54 In the event of a denied or vacated adoption petition, the natural parent benefits from the application of this doctrine which can change the tenor of the deliberations in his favor. In the event of equal footing between the natural parent and the adoptive party, both of whom seek custody, the natural parent will be granted custody because of the natural parents superior rights.

2.) Foster Parent Preference

The foster parent preference is a statutorily identified bias in favor of foster parents who seek to adopt their foster child. Accordingly, section 15.1 of the Adoption Act states as follows:

"(a) Any person over the age of 18, who has cared for a child for a continuous period of one year or more as a foster parent licensed under the Child Care Act of 1969 to operate a foster family home, may apply to the child’s guardian with the power to consent to adoption, for such guardian’s consent.

(b) Such guardian shall give preference and first consideration to that application over all other applications for adoption of the child but the guardian’s final decision shall be based on the welfare and best interest of the child…"55

Notice, however, that this preference is directed to be followed by the court appointed guardian; the statute does not say that the court must give first preference to the foster parent. While the guardian must ultimately communicate to the court his grant or denial of consent to the adoption, and therefore the foster parents through the voice of the guardian enjoy this preference, the court can act contrary to the adoption recommendations of the guardian.56

The codifying of this foster parent preference reflects the public policy behind it: our society seeks to give first priority of adoption to those individuals that have shown the care, concern, and love of the children that the foster parents have taken into their homes. The policy also acts to further encourage foster parentage by granting to them an adoption preference. Lastly, this statutory bias in favor of foster parents embodies the public policy that seeks continuity in a child’s life.

3.) Factors in Determination

In considering whether to grant a judgment of adoption, the court is required to consider all relevant factors in completing its best interest analysis in coming to its decision of whether to grant adoption, and if so, to which party. Some of these factors are codified in the Adoption Act:

1) the wishes of the child;

2) the interaction and interrelationship of the child with the applicant to adopt the child;

3) the child’s need for stability and continuity of relationships with parent figures;

4) the wishes of the child’s parent as expressed in writing prior to the parent’s execution of a consent or surrender for adoption;

5) the child’s adjustment to his present home, school and community;

6) the mental and physical health of all individuals involved;

7) the family ties between the child and the applicant to adopt the child and the value of preserving family ties between the child and the child’s relatives, including siblings;

8) the background, age and living arrangements of the applicant to adopt the child;

9) the criminal background check report presented to the court as part of the investigation required under Section 6 of this Act.57

These factors are not exhaustive nor all-inclusive. For example, at least one legal treatise further expounds on number 8), supra, by including "the background, race, ethnic heritage, behavior, age and living arrangements of the applicant to adopt the child. (emphasis added)58

In addition, the Adoption Act further dictates that the court in entering a judgment of adoption shall, whenever possible, give custody through adoption to a petitioner or petitioners of the same religious belief as that of the child.59

Case law identifies additional relevant factors the court may consider: the unwritten wishes of the natural parent made prior to his consent60; the financial ability of the parties61; and in a custody dispute, the court should give weight to the claim of the person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of the family unit.62

No one of the statutory relevant factors should be elevated in importance or given any greater value than any other factor.63 To do so would defeat the statutory mandate that the adoption court shall consider all relevant factors in making its adoption determination.64

In availing itself of all these factors, statutory and otherwise, the court should be best fitted to determine in it determination of the best interest of the child the proper placement for that child.

C. Attack Upon the Adoption Judgment

Our courts seek finality in the entry of judgments for adoption. Because of that, there are a variety of barriers that face contestants who seek to attack an adoption judgment.

Firstly, the Adoption Act specifically prohibits any attack of defective pleadings, either in form or substance that was not objected to prior to the entry of final judgment.65 In addition, the Act also limits the spectrum of persons that may attack an adoption judgment, such that a person subject to the jurisdiction of the court cannot complain that the court was lacking of jurisdiction of some other person; only the person over whom the court lacked jurisdiction can complain of that lacking jurisdiction.66 And in the event that the court finds that it lacked jurisdiction over a post-judgment complaining party such that an adoption judgment is set aside, it is set aside only as it affects that person.67

The Adoption Act further limits petitions for relief from the adoption judgment to one year from the date of entry of the judgment.68 In order to promote finality, this draconian limitation is codified in the Adoption Act.69 The application of this statute is illustrated in the Illinois Supreme Court case of In re India B.70 In that case the trial court terminated the parental rights of a mother of four children, and that mother appealed from the judgment of termination.71 The mother, however, failed to seek a stay of the termination order and the children were later adopted predicated on the court’s termination order. The mother made a fatal mistake in that even though she appealed the judgment of termination, she failed to petition for relief relative to the adoption judgment of her natural children. While her appeal of the termination was pending, more than one year passed from the date of the adoption judgment. Because of the passage of time in excess of a year from the date of the adoption judgment, her petition for relief from the judgment of termination was moot, and the adoption orders became unchallengeable.72

An exception to this statute prohibiting relief from judgment on an adoption petition more than one year after the court enters judgment is where the court lacked personal jurisdiction over one of the parties. But as previously described, if the court sets aside the adoption judgment based on lacking personal jurisdiction, it will do so only as it relates to that one person. In practical application, a likely complaining litigant in this situation is a non-custodial parent who falls victim to fraud orchestrated by the custodial parent who gives the non-custodial’s child up for adoption. In that situation, while the adoption relative to the non-custodial parent may be set aside, the custodial parent that originally consented to the adoption will be unable to invalidate those consents.

Another exception to the statutory limitations proscribing the arrest of judgments of adoptions, albeit seemingly rare in event, is where the court lacked subject matter jurisdiction over the adoption proceeding. In the event that a court enters an adoption order, for example, for a child born and living in another state and with no statutory ties whatsoever to this state, that court would have acted without proper jurisdiction and the judgment would be subject to collateral attack.

A distinction lies between the opportunity to attack an adoption judgment based upon whether that litigant is a party or nonparty. A party to an adoption judgment can contest both the court’s personal jurisdiction over that party as well as the subject matter jurisdiction of the court; a nonparty who attacks an adoption judgment can only question the court’s subject matter jurisdiction.73 This is consistent with the premise seeking to discourage interlopers from disturbing a settled adoption.

Our state has erected a number of barriers that place substantial obstacles in the way of any person seeking to disturb an adoption judgment. This reflects the strong interest the community has in maintaining those judgments. To that end, the Illinois Supreme Court pronounced that public policy considerations require adoptions be accorded a certain degree of stability and finality.74 Unlike lawsuits involving a building that must be rebuilt or dissipated funds that must be replenished, disturbing adoption judgments can disturb the nucleus of the family unit.


In order for a petition for adoption to succeed, the parental rights of the natural parents must by necessity first be extinguished. This is completed either with the natural parents consenting to the adoption, signing a surrender of parental rights, or by a court finding the parents unfit. In the case of an unknown father, unless he registers with the state’s Putative Father Registry, all of his rights to contest an adoption will be barred. After parental rights are severed, the court next considers the best interests of the child in determining whether to allow an adoptive placement.

A litigant can seek to contest the adoption proceeding through a variety of means. He can seek to contest the jurisdiction of the court, he can seek to contest the consent form itself for technical shortcomings or inadequacies, he can also seek to contest the volition of the giving of the consent and contend that it was procured under fraud or duress. In addition, a parent who anticipates that he will be losing his child through termination of parental rights proceeding might seek to circumvent the process and direct a specific adoption to a person of the parent’s choosing.

The court in weighing the facts of a contested adoption has factors and preferences to help direct it. They include the "superior rights doctrine" that favors the natural parent and the "foster parent preference" identified by statute that grants bias in favor of the adoption of a child by his foster family. In addition, the court has further statutory and case law factors that it must consider in determining the best interests of the adoptive child.

While public policy supports adoptions and the finality of adoption judgments, it is possible to attack the judgment of adoption. In light of the barriers erected to thwart those attempts however- including prohibiting attacks on defective pleadings and limiting petitions of relief of judgment to one year- those instances of success in doing so are likely to be infrequent.

Despite the perspective or motivation for engaging in a contested adoption proceeding, all persons involved in any such contested litigation should not lose sight of the ultimate purpose for which they battle. The wisdom of Soloman should caution and direct them that it is the love of the child and not the spite of the contestants that should be the driving force to engage in any litigation to contest an adoption.

1 Jollay v. Shuman, 22 Ill.App.3d 151, 319 N.E.2d 287 (Third Dist., 1974) (In an adoption proceeding a clear case must be made establishing the statutory grounds for adoption.)

2 Illinois Adoption Act 750 ILCS 50/1, et. seq.

3 In re Filippelli, 207 Ill.App.3d 813, 566 N.E.2d 412, 152 Ill.Dec. 725 (First Dist., 1990).

4 750 ILCS 50/8-50/11

5 In re Petition of Benavidez, 52 Ill.App.3d 626, 367 N.E.2d 971, 10 Ill.Dec. 362 (Second Dist., 1977).

6 705 ILCS 405/1-1, et seq.

7 In re Adoption of K.L.P., 316 Ill.App.3d 110, 735 N.E.2d 1071, 249 Ill.Dec. 246 (Second Dist., 2000).

8 Ornstead v. Kleba, 37 Ill.App.3d 163, 345 N.E.2d 714 (First Dist., 1976).

9 See, In re Adoption of E.L., 315 Ill.App.3d 137, 733 N.E.2d 846, 248 Ill.Dec. 171 (Second Dist., 2000).

10 In re Adoption of L.R.B., 278 Ill.App.3d 1091, 664 N.E.2d 347, 215 Ill.Dec. 950 (Fourth Dist., 1996).

11 Id.

12 In re Petition of Schomer, 89 Ill.App.3d 92, 411 N.E.2d 554, 44 Ill.Dec. 432 (Third Dist., 1980).

13 Id., 89 Ill.App.3d at 98, 411 N.Ed.2d at 559, 44 Ill.Dec. at 437.

14 In re Adoption of K.L.P., supra, 316 Ill.App.3d at 118, 735 N.E.2d at 1078, 249 Ill.Dec. at 253.

15 See, Harold K. v. Ryan B., 313 Ill.App.3d 692, 730 N.E.2d 88, 246 Ill.Dec. 408 (Fifth Dist., 2000).

16 Black’s Law Dictionary, West Publishing Co., 1990.

17 In re Adoption of E.L., supra, 315 Ill.App.3d at 149, 733 N.E.2d at 856, 248 Ill.Dec. at181.

18 Id.

19 Id. , supra, 315 Ill.App.3d at 141, 733 N.E.2d at 850, 248 Ill.Dec. at175.

20 Id.

21 Id.

22 Id. , supra, 315 Ill.App.3d at 155, 733 N.E.2d at 860, 248 Ill.Dec. at185.

23 In re Petition of K.J.R., 293 Ill.App.3d 49, 687 N.E.2d 113, 227 Ill.Dec. 190 (First Dist., 1997).

24 Id., 293 Ill.App.3d at 56, 687 N.E.2d at 118, 227 Ill.Dec. at 195.

25 Id.

26 750 ILCS 50/12.1 (West 2003).

27 In re Adoption of E.L., supra, 315 Ill.App.3d at139, 733 N.E.2d at 849, 248 Ill.Dec. at 174.

28 In re Petition of K.J.R., supra, 293 Ill.App.3d at 58, 687 N.E.2d at 119-120, 227 Ill.Dec. at 196-197.

29 Meza v. Rodriguez, 305 Ill.App.3d 777, 713 N.E.2d 764, 239 Ill.Dec. 233 (Second Dist., 1999).

30 Id., 305 Ill.App.3d at 784, 713 N.E.2d at 769, 239 Ill.Dec. at 238.

31 Id. .

32 750 ILCS 50/11(a) (West 2003).

33 Meza v. Rodriguez, 305 Ill.App3d at 787, 713 N.E.2d at 772, 239 Ill.Dec. at 241.

34 Id.

35 Id. , 305 Ill.App.3d at 787, 713 N.E.2d at 771, 239 Ill.Dec. at 240.

36 Id., 305 Ill.App.3d at 788, 713 N.E.2d at 772, 239 Ill.Dec. at 241.

37 Id.

38 Hale v. Hale, 57 Ill.App3d 730, 373 N.E.2d 431, 15 Ill.Dec. 85 (Fifth Dist., 1978).

39 In re Adoption of Kindgren, 184 Ill.App.3d 661, 540 N.E.2d 485, 132 Ill.Dec. 745 (Second Dist., 1989).

40 Sims v. Sims, 30 Ill.App.3d 406, 332 N.E.2d 36 (Fourth Dist., 1975).

41 Id., 30 Ill.App.3d 408-411, 332 N.E.2d 37-40

42 Id., 30 Ill.App.3d at 411, 332 N.E.2d at 40.

43 In re Adoption of L.R.B., 278 Ill.App.3d 1091, 664 N.E.2d 347, 215 Ill.Dec. 950 (Fourth Dist., 1996).

44 In re Marriage of T.H., 255 Ill.App3d 247, 626 N.E.2d 403, 193 Ill.Dec. 370 (Fifth Dist., 1993).

45 Id. 255 Ill.App.3d at 253, 626 N.E.2d at 408, 193 Ill.Dec. at 375.

46 Id. 255 Ill.App.3d at 250, 626 N.E.2d at 406, 193 Ill.Dec. at 373.

47 In re Adoption of L.R.B., supra, 278 Ill.App.3d 1091, 664 N.E.2d 347, 215 Ill.Dec. 950

48 Id., 278 Ill.App.3d at 1094, 664 N.E.2d at 348-349, 215 Ill.Dec. at 951-252.

49 Id., 278 Ill.App.3d at 1093, 664 N.E.2d at 348, 215 Ill.Dec. at 951.

50 In re Adoption of E.L.supra, 315 Ill.App.3d at 156, 733 N.E.2d at 861, 248 Ill.Dec. at 186.

51 750 ILCS 50/15.1 (West 2003).

52 750 ILCS 50/20 (West 2003).

53 In re Woods, 54 Ill.App.3d 729, 369 N.E.2d 1356, 12 Ill.Dec. 342 (First Dist., 1977).

54 In re Adoption of E.L., supra, 315 Ill.App.3d at 157, 733 N.E.2d at 862, 248 Ill.Dec. at 187.

55 750 ILCS 50/15.1 (West 2003).

56 750 ILCS 50/15.1(d) (West 2003).

57 750 ILCS 50/15.1(b) (West 2003).

58 2A Horner Probate Practice & Estates § 1321.10.50

59 750 ILCS 50/15 (West 2003).

60 In re Petition of Benavidez, 52 Ill.App.3d 626, 367 N.E.2d 971, 10 Ill.Dec. 362 (Second Dist., 1977).

61 Waldron v. Waldron, 106 Ill.App.2d 430, 245 N.E.2d 910 (Third Dist., 1969).

62 In re Custody of Townsend, 86 Ill.2d 502, 427 N.E.2d 1231, 56 Ill.Dec. 685 (Ill. S.C., 1981).

63 In re Adoption of C.D., 313 Ill.App.3d 301, 729 N.E.2d 553, 246 Ill.Dec. 180 (Fourth Dist., 2000).

64 In re M.M., 156 Ill.2d 53, 619 N.E.2d 702, 189 Ill.Dec.1 (Ill. S.C., 1993).

65 750 ILCS 50/20 (West 2003).

66 Id.

67 Id.

68 750 ILCS 50/20b (West 2003).

69 Id.

70 In re India B., 202 Ill.2d 522, 782 N.E.2d 224, 270 Ill.Dec. 30 (Ill. S.C. 2002), cert. denied 123 S.Ct. 1503, 155 L.Ed.2d 242.

71 Id., 202 Ill.2d at 521, 782 N.E.2d at 230, 270 Ill.Dec. at 36.

72 Id., 202 Ill.2d at 533-542, 782 N.E.2d at 231-236, 270 Ill.Dec. at 37-42; See also, In re J.D., 317 Ill.App.3d 445, 739 N.E.2d 1043, 251 Ill.Dec. 110 (Fourth Dist., 2000) (Aunt could not attack the adoption judgment regarding her nephew where she filed her petition for relief more than one year after entry of adoption judgment).

73 In re J.D., 317 Ill.App.3d 445, 739 N.E.2d 1043, 251 Ill.Dec. 110 (Fourth Dist., 2000).

74 In re Tekela, 202 Ill.2d 282, 780 N.E.2d 304, 269 Ill.Dec. 119 (Ill. S.C., 2002)

Anthony Abear is the proprietor of The Law Offices of Anthony Abear, P.C. He received his law degree from DePaul University College of Law in Chicago. He obtained his baccalaureate degree in communications from the University of Illinois at Urbana/Champaign. And he is a lifelong Cubs fan. He can be contacted at or by telephone at 630.904.3033.

DCBA Brief