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A Case Law Overview for Child Custody Disputes in Civil Union Dissolutions

With the stroke of a pen, in 2011, Illinois enacted legislation permitting civil unions for same-sex couples (and opposite-sex couples, too). So the question arises, is there anything new to talk about with civil unions and custody matters? The civil union act requires liberal construction and application to promote its purposes, which include providing parties to a civil union with all obligations, responsibilities, protections and benefits afforded to or recognized by law of Illinois to spouses. See 750 ILCS 75/5 (West 2011). According, a child born during a civil union is presumed to be the child of both parents. See 750 ILCS 45/5 (West 2011). So, a custody dispute would proceed like any other custody dispute a dissolution of marriage case. Well? It is only a presumption, and evidence of non-parentage can be presented, so a party may face a standing challenge.

Of course, if the parties to a civil union adopt the children, either in a co-parent adoption or a second-parent adoption, there are not issues with the presumption of parentage. Illinois case law and Eighteenth Judicial Circuit Local Rule 21 permit same-sex adoptions. See Petition of K.M., 274 Ill.App.3d 189 (1st Dist. 1995); In re C.M.A., 306 Ill.App.3d 1061, 715 N.E.2d 674 (1st Dist. 1999). The child has legal parents and the Court, under 750 ILCS 5/601, can address custody.

With a civil union, assuming there is no adoption and assuming the presumption of parentage is challenged, the non-biological parent can still claim stepparent status. Unfortunately, the provisions of the Illinois Marriage and Dissolution of Marriage Act pertaining to stepparent custody and stepparent visitation have many hurdles and age requirements that are not only onerous, but also are incongruous with the changing definition of family in Illinois, both by law and by custom. See 750 ILCS 5/601(b)(3) and 750 ILCS 5/607(b)(1.5) (West 2011). Furthermore, there are NO common law visitation rights for stepparents. In re Marriage of Engelkens, 354 Ill. App. 3d 790, 821 N.E.2d 799 (3rd Dist. 2004).

Accordingly, this article shall provide a brief case law overview of custody and visitation issues for non-biological parents:

In re Adoption of A.W., J.W., and M.R., Minors, 343 Ill. App. 3d 396, 796 N.E.2d 729 (2nd Dist. 2003). Appellate Court rejected a lesbian mother's theory that she had standing, either in loco parentis or as a de facto parent, to seek visitation with the biological children of her former domestic partner. (Case also involved withdrawal of consent issues in a co-parent adoption – in essence, the parties had begun an adoption and the relationship soured, resulting in the dispute).

In re the Matter of Visitation with C.B.L., 309 Ill. App. 3d 888, 723 N.E.2d 316 (1st Dist. 1999). Petitioner had a same-sex relationship with Respondent, who was artificially inseminated, resulting in the birth of a child. Petitioner was equally involved in the care and nurturing of the child. Respondent broke up with Petitioner and took the child with her. Petitioner sought visitation, claiming that she had standing by showing she was a “de facto" parent and as an individual “in loco parentis." Appellate Court affirmed the circuit court’s dismissal of the petition for visitation. The court determined that Section 607 specifically categorized who may petition for visitation and what requirements they must meet and thus superseded the common law. While affirming the dismissal based on lack of standing, the court stated in dicta that this issue demands a comprehensive legislative solution, given that evolving social structures have created non-traditional relationships.

In re Marriage of Simmons, 355 Ill. App. 3d 942, 825 N.E.2d 303 (1st Dist. 2005). Transsexual male, whose marriage to wife was declared void pursuant to 750 ILCS 5/212(b) because the “husband" was not completely male, sought custody of the minor child. Husband argued that he was the primary caregiver and the one raising the child. The artificial insemination agreement between the parties stated that the parties intended for the husband to be deemed the father of the child. Husband had a birth certificate listing him as a male. In addition to determining that the parties’ marriage was a prohibited marriage and void ab initio, the Appellate Court, in affirming the trial court, rejected parentage arguments Illinois Parentage Act of 1984. The Court found that the terms “husbands" and “wives" under the Illinois Parentage Act, also did not apply to transsexual males. The Court also rejected “de facto parent" argument, as the husband argued he was the father under the common law, as the child knew him as “daddy" and responded to him as if he were a parent. The Court held that the transsexual male’s standing rested solely in the IMDMA, and as the transsexual male was still “female," standing is absent.

Connor v. Velinda C., 356 Ill. App. 3d 315, 826 N.E.2d 1265 (5th Dist. 2005). Former same-sex partners who had adopted a child had standing under the IMDMA to seek custody, despite the prohibition against same-sex marriage contained in the IMDMA. The Act allows a custody proceeding to be commenced by a parent by filing a petition for custody. Since the parties each met the definition of parent, each parent had standing to pursue custody. The fact that one of the parents was biologically related to the child carried no additional weight for the custody award.

In re Petition of Kirchner, 164 Ill.2d 468, 649 N.E.2d 324 (1995). Though not a civil union or LGBT custody dispute, the “Baby Richard" adoption case is relevant to the issue of “de facto" or psychological parents. A child may bond to a person, a person providing love, care, and education for that child. A child may call that person a parent. The Illinois Supreme Court has specifically held that a child has no liberty interest in maintaining a relationship with respect to a child’s psychological attachment to a non-biological parent. See In re Petition of Kirchner, 164 Ill.2d 468, 649 N.E.2d 324 (1995).

In re Parentage of Unborn Child Brumfield,284 Ill. App. Ed 950, 673 N.E.2d 461 (4th Dist. 1996). In another non-LGBT custody dispute, a fact pattern similar to Baby Richard arose wherein a dispute arose between the biological mother, the biological father, and the potential adoptive parents. The potential adoptive parents were unsuccessful in the trial court and appellate court. However, Judge James Knecht, in his dissent, made the following substantive argument: “Because parenthood is a social, psychological, and intentional status as much as it is a biological one, courts should have a flexible interpretation of standing to permit those who have social and psychological ties to a child and who have chosen to accept the responsibility of parenting, and actively intend to meet that responsibility, to participate in court proceedings to determine custody."

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