Illinois Matrimonial & Family Law

Grandparent and Third Party Standing
for Parental Responsibility

by Wes Cowell, updated 15 January 2016

 

Parental Responsibility cases are usually brought by parents.  Cases may be brouhgt by others, however:  Grandparents, step-parents, other family, even friends and neighbors.  Need advice?   Call, leave your info, or schedule a consult.

 

Background:  Generally, only parents may file with the court to obtain rights of "parental responsibility."  Parents may initiate a claim for rights of parental responsibility by filing for a divorce or legal separation (750 ILCS 5/601.2(b)(1)), or independently (750 ILCS 5/601.2(b)(2)). In a typical case, a child’s biological parents will separate, the parent keeping the child will fall on hard times and turn the child over to a relative, friend, or neighbor for the child’s sake.  The adult who is then caring for the child may have a lot of trouble with things like medical care, school registration, and similar matters usually requiring parental approval or notification.  Worse, without the proper court orders in place, the adult caring for the child may be liable for any harm that comes to the child.  For that reason, the adult caring for the child may ask a judge to give him or her custody of the child.

 

Grandparents:  An exception to the "parents-only" rule exists, however, where the child is in the physical possession of a third party, not a parent.  750 ILCS 5/601.2(b)(3).  The cases are limited: third parties may not resort to abduction or wrongly luring a child away from the parent(s) in an effort to file a case.  Where a child has been voluntarily placed with a third party -- or abandoned -- however, that third party may have standing to seek to obtain custody in Illinois.

 

Deceased related parent:  Sometimes gradparents can't satisfy the "grandchild-in-physical-possession" rule but they still need to swoop in and rescue the grandkids from dire circumstances.  Illinois law allows such relief when one parent is deceased and the grandparent is a parent or step-parent of the deceased parent AND:

 

1. the surviving parent had been absent from the marital home for more than 30 days without the deceased spouse knowing his or her whereabouts (750 ILCS (b)(5)(A));

2. the surviving parent is in State of federal custdy (750 ILCS 5/6012(b)(5)(B)); OR

3. the surviving parent has been convicted of (or received supervision for) one of the following:

• criminal sexual assault (720 ILCS 5/11-1.20)

• aggravated criminal sexual assault (720 ILCS 5/11-1.30)

• predatory criminal sexual assault of a child (720 ILCS 5/11-1.40)

• criminal sexual abuse (720 ILCS 5/11-1.50)

• aggravated criminal sexual abuse (720 ILCS 5/11-1.60)

• endangering the life or health of a child (720 ILCS 5/12C-5)

• child abandonment (720 ILCS 5/12C-10)

• tattooing the body of a minor (720 ILCS 5/12C-35)

• piercing the body of a mior (720 ILCS 5/12C-40)

• "drug induced infliciton of harm" to a chid  (passing steroids) (720 ILCS 5/12C-45)

• car jacking (720 ILCS 5/18-6)

• home invasion (720 ILCS 5/19-6)

• any of teh "bodily harm" offenses (720 ILCS 5/12-1 et seq.) directed toward the child or the deceased parent

• violating an emregency, interim, or plenary order of protection naming the deceased parent or child as a protected person. (750 LCS 60/217, 218, or 219)

750 ILCS 5/601.2(b)(5)(C)

 

Step-Parents:  Step-parents may seek the power of parental responsibility over their step-children when:

 

1. the parent having the majority of parenting time is decceased or disabled and cannot perform the duties of a parent;

2. the step-parent provided for the care, control and welfare of the child before filing th case;

3. the child wishes to live with the step-parent; AND

4. the step-parent thinks it would serve the child's best interest to live with the step-parent.

750 ILCS 5/601.2(b)(4)

 

The requirement that "the child wishes to live with the step-parent" was introduced in the law 1 January 2016 and has not been tested in court.  For children too young to express such a desire, the required evidence could probably be presented through a G.A.L. or Child Representative.

 

In one noted case, a step-father obtained custody of his step-child over the objection of the child’s biological mother.  The court noted the child’s adjustment to the father’s home, the local school, and community as well as his relationship with his half-brother (born to the couple). In re:  Marriage of Archibald, 363 Ill.App.3d 725, 300 Ill.Dec. 188 (5th Dist., 2006).

 

If you’re caring for a child other than your own, call my office to learn what you should do to protect yourself . . . and the child.