Circumstances can arise when, for various reasons, a child is not in the possession of one or both of his or her parents and certain non-parents might seek to obtain an allocation of parental responsibilities (formerly known as “custody”) and parenting time (formerly known as “visitation”). In Illinois, non-parents can have a difficult time attaining their goals, unless certain specific conditions are met. Generally speaking, section 601.2 of the Illinois Marriage and Dissolution of Marriage Act provides that proceedings related an allocation of parental responsibilities (custody) are allowed:
- By a parent filing a petition for divorce or legal separation;
- By a parent filing a petition for allocation of parental responsibilities;
- By a person other than a parent, only if the child is not in the physical custody of one of his or her parents;
- By a step-parent, if certain circumstances are met; or
- When one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, if certain conditions existed at the time of the parent’s death.
This post focuses only on situations that arise under number 3 above, when a non-parent seeks an allocation because the child is not in the physical custody of one of his or her parents.
Imagine that Kourtney and Scott are never married and have three children together. Five years ago, Scott was thrown in jail for crashing his Lamborghini while highly intoxicated, and eventually convicted. While Scott was in prison, Kourtney and the children moved in with Kourtney’s mother, Kris. Kourtney and the kids lived at Kris’ house on and off for the next year or so.
As more time passed, however, Kourtney would leave the kids at Kris’ home for extended periods of time while she ran around town with her new boyfriend, Justin. Specifically, over the course of the last two years, Kourtney has seen the kids for a grand total of three weeks. Kris has been acting as the children’s parent for all intents and purposes. She decides that both Scott and Kourtney are unstable, so she files a petition with the court seeking parental responsibilities for the children (i.e., custody). Kourtney finds out about this and objects, filing her own petition claiming that that the children were not in Kris’ physical custody at the time Kris petitioned the court.
In this situation, Kris, as the non-parent, would have to prove to the court that she has standing to properly pursue her petition in court before the court can consider whether it is in the children’s best interest to grant Kris parental responsibilities for the children. In order to do so, she must show that the three kids are not in the physical custody of one of their parents (see number 3 above). While it might seem obvious in this hypothetical case of Kourtney and Scott, the test to determine if the children are in the physical custody of their parents involves more than mere possession. Rather, it requires a showing that the parent somehow has voluntarily and indefinitely relinquished the custody of the child.
In order to determine whether a parent has voluntary relinquished physical custody of a child, such that a non-parent has standing to petition for the custody of the child, the court can consider: 1) who cared for the child before the petition for allocation of parental responsibilities and parenting time was filed; 2) how the non-parent gained physical possession of the child; and 3) the nature and duration of the possession. The analysis is very fact specific, so seemingly similar cases can have different outcomes.
For example, Illinois courts have decided that a non-parent could not petition for an allocation of parental responsibilities (custody) in the following types situations:
- A custody judgment was entered granting the mother legal and residential custody of the child, subject to the father’s visitation. The mother moved herself and the child in with her own parents until she died. The grandparents sought custody of the child and the father objected. The court decided that since the mother had custody of the child while she lived with her parents, per the court order, there was no voluntary relinquishment of custody to her parents. The court further stated that it would be unreasonable to believe that just by the mother living with her parents, the grandparents could obtain standing to keep the father’s child from him. The child was only in the grandparents’ sole care because the mother died. In re Custody of Peterson.
- A father was incarcerated for nine years, and the mother and the child moved in with her parents during his imprisonment. Shortly thereafter, the mother and child left her parents’ home, but the mother asked her parents to watch the child on weekends and the grandparents performed duties of a custodian (rather than babysitter) such as caring for her, buying her clothes, feeding her, dressing her, and taking her to doctor’s appointments. When the mother came and asked for the child after a weekend visit, her parents refused and they filed a petition for custody. In this situation, the court decided that mere weekend or even daily care of the child is not sufficient to create standing for the non-parent. Further, the grandparents’ refusal to give the child back did not mean they had physical possession sufficient to have standing. A non-parent cannot refuse to give a child back at the time they file the petition so as to satisfy the standing requirement. In re Custody of McCuan.
- A mother and father were married, and the father asked his sister to care for the child and to seek permanent custody of her. The mother never consented to this arrangement. The court decided that the mother never relinquished custody, and the nonparent had possession of the child for merely six months at the onset of the litigation. The court further stated that the father’s unilateral decision to relinquish custody of the child to his sister did not confer standing upon the sister. In re Marriage of Sechrest.
However, Illinois courts have also determined that there are certain situations in which a non-parent should be able to proceed to seek an allocation of parental responsibilities:
- A mother and father were divorced, and the father was awarded legal and physical custody. The child resided with his father and stepmother for 6 years and was 12 at the time his father died and his stepmother sought custody. The court found that the stepmother did have standing because a mother-son relationship had developed over the course of the previous 6 years and because the mother voluntarily relinquished custody of the child 6 years prior to the custody litigation commencing, in the divorce. In re Marriage of Carey.
- A mother died shortly after the child’s birth, and the father asked his parents to care for the child. The child remained with the grandparents for 7 years, at which point the father forcibly removed the child from their home. The grandparents immediately filed a petition for custody and the court decided that they had standing to continue with the litigation. The court found that the voluntary nature of the initial transfer, coupled with the lengthy period of care by the grandparents and corresponding integration of the child into the home of her grandparents, sufficient to give them standing. In re Custody of Menconi.
- A mother and father were divorced, and the parties agreed that the mother would have sole legal and residential custody of the parties’ child. The mother and child moved in with her parents and resided there on and off for several months. The mother would leave the child at her parents’ house for extended periods of time. The father petitioned for custody of the child and the grandparents sought custody. The court decided that the grandparents had standing to seek custody because the child had lived with them for 8 years, and that the grandparents provided the daily support and care of the child. The court stated, however, that the mother’s absences from the child alone could not serve to confer standing to the grandparents. The court stated that it was clear that the father approved of the grandparents caring for the child and was aware that the child was in their possession and control, without the mother. The court held that the mother’s voluntary delivery of the child to her parents, her absence, the father’s agreement to the child residing with the grandparents without the mother was sufficient, coupled with the eight-year time-frame the child lived with the grandparents, to confer standing. In re Marriage of Feig.
Based on the law in Illinois, a non-parent is able to seek an allocation of parental responsibilities and parenting time for a child, only in certain circumstances where certain sets of facts are presented. If you have a case involving a non-parent seeking parental responsibility or parenting time with a child, it is critical to consult an attorney experienced in this area of law to know your options.