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custody not your biological child

How Do I Obtain Custody of a Child that Isn’t My Biological Child?

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Categorized as Child Custody, Illinois Family Law

Many times parties will want to file for custody of a minor child that is not their own biological child.  Aunts, Uncles, siblings, grandparents, and other adults often times will find themselves in circumstances where they wish to file for custody.   In Illinois there are certain situations where they possibly can obtain custody, but it depends on whether or not they have the standing to file a petition or a new case.  

“Standing” and Seeking Custody of a Minor that is Not Your Biological Child

In Illinois, you must have standing in order to file for custody of a minor child that is not your biological child.  Illinois law prescribes specific situations where a specific type of non-parent may file for custody of a minor child.  Generally, if you are a non-parent that wishes to file for custody of a minor child under the Illinois Marriage and Dissolution of Marriage Act, you may only do so if the minor child is not in the physical custody of one of their biological parents.  So, for example, if a minor child is in the physical care of their maternal grandmother and paternal grandmother wishes to file for custody, they may do so.  If the minor child is in the care of her mother and her paternal grandmother wishes to file for custody under the Illinois Marriage and Dissolution of Marriage Act, they may not do so, because the child is in the physical custody of one of their parents.  There is a presumption under the Illinois Marriage and Dissolution of Marriage Act in favor of the biological parent of a minor child. 

In the event that a non-parent wishes to file for custody of a minor that is not their biological child and minor child is in the care of one of their natural parents, you must meet a much higher standard and prove that the natural parent is unfit.  You don’t need to prove that a natural parent is unfit under the Illinois Marriage and Dissolution of Marriage Act to obtain custody, but you do have a rebuttable presumption in favor of the biological parent.

Standing to Petition for Visitation of a Child Who is Not Your Biological Child

The statute in Illinois governing standing in these sorts of cases is 750 ILCS 5/602.9 of the Illinois Marriage and Dissolution of Marriage Act.  This section essentially provides that visitation can be obtained by certain non-parent individuals with a minor child.  A petition can be filed by any of the persons enumerated in that section, which is a grandparent, great-grandparent, step-parent, or sibling so long as the minor child is one year old or older and so long as at least one other criteria is met.  The other criteria are that a parent is deceased or missing, a parent is incompetent, a parent is incarcerated in excess of 90 days, the parents have been granted a divorce or legal separation or there is a pending proceeding for same involving the child and at least one parent doesn’t object to the visitation.

One final situation is when the child is born to unmarried parents who don’t live together, the petitioner is a grandparent, great grandparent stepparent, or sibling of the child and the parent-child relationship has been legally established with respect to the parent who is related to the petitioning party.

It is important to note that while there are rules “on the books” regarding third-party parenting time with a minor child when the third party is one of the above-referenced persons, most Courts hesitate to award parenting time to someone who is not a parent of a child because it typically means that at least one parent objects to the parenting time if someone is having to sue for it.  (The exception being that if dad passes away and paternal grandmother wants to see the child but mom says no, and there was a prior relationship when dad was alive).  The Courts understand that parents have a constitutional right to parent their child in a way that they see fit, so it can be an uphill battle to file these sorts of cases.  There have also been appeals where the Illinois statute has been argued as being unconstitutional in the past.  So, these are not easy cases to litigate.

Standing to Petition for Allocation of Parental Responsibilities for a Non-Biological Child

In this scenario, there are only two situations where someone can file for Allocation of Parental Responsibilities for a non-biological child.  One person who can file is someone who is not a parent, but who files in the custody where the child is permanently resident or found, as long as the child is not in the physical custody of one of his or her parents.  The second type of person who can file for allocation of parental responsibilities is a stepparent, but only if they meet all of the following criteria:

  1. The parent having the majority of parenting time is deceased or is disable and cannot perform the duties of a parent to the child
  2. The stepparent provided for the care, control, and welfare of the child prior to the initiation of proceedings for allocation of parental responsibilities
  3. The child wishes to live with the stepparent; and
  4. It is alleged to be in the best interests and welfare of the child to live with the stepparent as provided until Section 750 ILCS 5/602.5 of the Illinois Marriage and Dissolution of Marriage Act.

Standing is easy to establish so long as the minor child is not living with a parent at the time the case is filed, for obtaining an allocation of parental responsibilities.  However, Courts are often skeptical when awarding a minor child to someone who isn’t a parent, and these cases can likewise be very difficult to litigate.

Generally, if you wish to obtain custody of a minor child that is not your biological child, you must research on your own or speak with an experienced child custody attorney in order to determine whether or not you have legal standing to do so.  If you are facing an issue such as this and wish to retain counsel, please feel free to call our office to set up a consultation.

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