Illinois Does Not Recognize De Facto Parents, But New Supreme Court Case Now Recognizes “Equitable Adoption”

2 handsIn Re the Parentage of Scarlett Z.D is a case that was just decided by our Appellate Court.  It’s interesting, because for the first time, parentage cases are not looking at the doctrine of “equitable adoption.” 

Jim and Maria began living together as a couple in 1999, and later became engaged.  In early 2003, Maria went home to visit her family in Slovakia.  While in Slovakia, she met an orphaned girl, Scarlett.  Jim and Maria decided that Maria would adopt Scarlett, but because Slovakia would not allow Jim to adopt along with Maria, Maria completed the adoption by herself.   Slovakia required Jim to be married to Maria (which he wasn’t), or he had to be a Slovakian national, which again, he was not.

In 2004, Maria returned to the United States with her adopted daughter Scarlett.  The parties still did not get married, and Jim did not take steps to adopt Scarlett once she arrived in the States, although they continued to live together as a family. 

In 2008, the relationship deteriorated, and Maria moved out with Scarlett.  Jim filed a petition to declare his parental rights, and Maria filed a motion to dismiss that petition, arguing he lacked standing to petition the court. 

Jim argued an area of law we are now seeing a lot of, which is he is the “de facto parent.”  Meaning, he is the equitable and psychological parent to Scarlett.  A term not recognized under current Illinois law.    

The trial court met with Scarlett and found out that she referred to Jim as “daddy” and looked to him as a father figure in her life.  The court found considerable evidence that when Maria moved out and prevented Scarlett from seeing Jim, that this lack of contact was not good for Scarlett and that “father and daughter” were bonded.  The trial court expressed dismay about Maria’s conduct, finding that she had alienated the child from Jim, but under the law, had no choice but to dismiss Jim’s petition.

No one can seek custody of a child unless they are the parent.  In Illinois, that is called the superior rights doctrine.  Essentially, the superior rights doctrine recognizes parents’ interest in the care, custody and control of their children, before the rights of all others. 

Jim lost at the trial level, but then the case of DeHart was decided by the Supreme Court.  The DeHart case dealt with “equitable adoption.”  DeHart said that in cases where there is sufficient, objective evidence of an intent to adopt, supported by a close enduring familial relationship, an equitable adoption can be found by the court.  Prior to DeHart, Illinois courts did not have the opportunity to evaluate the evidence with equitable adoption in mind. 

The Appellate Court remanded Jim’s case back to the trial court, with directions to make factual findings based on the DeHart decision.   Jim is getting another attempt to stay in Scarlett’s life now.  Of course, this could have all been avoided had he gone forward with the adoption in the first place.

If we learn anything at all from Jim and Maria’s case, it’s that Illinois does not recognize de facto parents, and if you don’t make the relationship to the child a legal one, you can be put in the same position as Jim.  You need to adopt the child, or enter into some agreement with the parent that allows you access to the child in the event that your relationship ends.   

I am rooting for Jim in his rehearing before the 2nd District.  It will be interesting to see what the court does at the end of the 2nd hearing, and hopefully before Scarlett becomes an adult.

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