Illinois Does Not Recognize Functional Parent Theories

Sometimes good people develop strong relationships with their romantic partner’s children. These people often take on the role of a parent even though they are not technically the child’s legal parent. If that romantic relationship ends, in Illinois, that functional parent can lose all rights to have any custody or visitation with the child. However, other jurisdictions have taken a different approach

What is a Functional Parent Theory?

A claim for custodial or visitation rights is a claim that, while there is no official legal parent-child relationship, the existence of a de facto parent-child relationship should allow the functional parent to make a claim for custody or visitation anyway. The Illinois Marriage and Dissolution of Marriage Act allows non-parents to petition for custody rights, but only in situations where the child is not in the physical custody of his or her parent.

The Illinois Parentage Act defines a parent-child relationship as being the legal relationship between a child and his or her natural or adoptive parents. Therefore, the Illinois statutory scheme does not allow for functional parents to petition for custody unless the child is not in the custody of a parent already. Functional parents have argued that despite this lack of statutory recognition, they should be able to petition for custody anyway. This is, in part, because family law has a history of recognizing that functioning as a parent can lead to legal recognition as a parent.

Functional Parent Theories Not Recognized in Illinois

Nationwide, various legislatures have crafted remedies to the problem of people who have acted as parents but lack rights when their relationship with a child’s legal parent ends. This sort of issue has come up often in same-sex relationships in places where same-sex couples are not allowed to adopt a child together, but where one member of the relationship is allowed to adopt the child as a single person. It also comes up in international adoptions where one partner is eligible to adopt under a foreign country’s laws, but the other is not.

Acknowledging that this is a real issue and that in some cases functional parents being able to obtain custody or visitation may be in a child’s best interests, some legislatures have crafted remedies for functional parents. The Illinois legislature has not. The Illinois Supreme Court had the opportunity to afford these individuals rights, but decided not to because the complex policy issues surrounding the issue make it one that is better left to the legislature to decide. Hence, functional parents in Illinois have no real legal options to obtain custodial or visitation rights if a child’s legally recognized parent does not wish to cooperate. This means that in order for functional parents to obtain access to the children they have raised as their own, they will have to work with the legally recognized parent unless and until the Illinois legislature decides to act.

Call Sullivan Taylor, Gumina & Palmer, P.C.

Disputes over child custody can be contentious. Winning these battles can be difficult, which is why you need the help of a skilled Illinois family law attorney. Call Sullivan Taylor, Gumina & Palmer, P.C. at 630-665-7676 for help.