I just recently got married and my new husband wants to adopt my 10 yr old son. He has been his father for the past 6 yrs. And his real father is in prison for doing sexual things to his 16 yr old daughter. Which she was 10 at the time? Would I need his consent to an adoption. I would think not. But I am curious. I live in Illinois. Also. My son wants to be adopted. What can I do?

Yes, you would need consent for him to terminate his parental rights in order for an adoption to happen.

Prison or not, he is the father of the child, and as J9 stated, you would need his consent to terminate his rights to make way for an adoption. Your wants, and those of your child, do not negate the legal rights of the biological father.

Since he is in prison (and not paying child support?), Illinois law will most likely allow an adoption. Check with an adoption lawyer about this, and ask if you and your new husband will have to be married first for a certain length of time.

Unless his rights have already been removed due to his crime, he will still have to agree to a termination of parental rights for the adoption to happen. Many states, I'm not sure about Illinois, require that the couple be married for a year before paving the way for adoption.

In Illinois, imprisonment is usually considered abandonment. And in light of the bio-father's previous disinterest, I'm guessing your lawyer could make a solid case for you. I could find nothing in IL law regarding how long you and your husband have to be married before adoption can take place. Like I said, ask your lawyer about that. Since your husband has been in the child's life for a long time, any marriage-length restriction might very well be waived. (I'm a long-time Illinois resident.)

9. Does it matter whether both parents consent to the adoption?

Generally, both parents need to agree to the adoption of their child, unless:

A court has determined that a parent is "unfit" under Illinois law;
The parents have given up their rights to the child;
A court has determined that a parent is not the biological or adoptive parent of the child.

Generally, a father doesn't need to agree to the adoption of a child when:

He has legally given up his parental rights;
He is the father as the result of criminal sexual abuse or assault;
He is a family member of the child's mother, and the mother was under the age of 18 when the child was conceived;
He is 5 or more years older than the mother, and the mother was under the age of 17 when the child was conceived.

Illinois Legal Aid | Adopting a Child (http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentid=1770#q=8)

The following is the law in Illinois regarding whether the possibility of automatic termination exists. I will post the link as the law is too long to copy and paste.

   (http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2098&ChapAct=750%26nbsp%3BILCS%26nbsp%3B50%2F&ChapterID9&ChapterName=FAMILIES&ActName=Adoption+Act).

In other words J, it sounds like the OP needs to get consent from the bio dad for an adoption to take place.

I would be interested in seeing the abandonment laws that WG posted about, and how that determines parental rights. I couldn't find any info on that.

I'm on a Kindle right now, but will cite from IL law in the morning when on my pc.

No need, WG. I already cited IL law.

It looks very much as though termination of parental rights can be ordered, whether or not the father agrees. But he will probably have to be given notice of the proceeding, in case he wants to try to argue that TPR is not appropriate.

OP needs to get an attorney to do this right.

I agree with AK here. The bio father needs to be informed of the adoption and his consent solicited. However, if he refuses to consent, I would be surprised if the court does not approve the adoption anyway.

Step parent adoptions can be approved without the express approval of the parent being supplanted. The petitioner just has to prove that the bio parent has been notified and that the adoption would be in the best interests of the child. Clearly, in this case, it would be.

I would, however, go through an attorney to make sure everything is done right. That notice is properly made and that the step father proves its in the child best interests. So to the OP, while I agree with you that his consent would probably not be needed, I'm guessing you think he can just be ignored and that's not the case.