The Illinois Supreme Court recently ruled in an important case involving a step-parent within a civil union. I had written in 2019 the 2019 update to Gitlin on Divorce that I expected a reversal of the appellate court’s decision. The background follows.
Illinois passed the Religious Freedom Protection and Civil Union Act giving protection and recognition to the legal relationship between two persons, of either the same or opposite sex, to the type of commitment known as a civil union. The Civil Union Act includes language that equates a civil union with a marriage. It states that the party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as spouses in a marriage. Since the Civil Union Act was passed, the Illinois legislature has continued to amend various aspects of Illinois family law, awarding more rights to partners of a civil union. Yet there was not a wholesale review of Illinois family laws for this purpose.
Changes have been hit and miss. For example, in 2019, the IMDMA was amended to recognize partners to a civil union have a responsibility to pay one another maintenance5 or child support6 if their union ends. Despite continuing legislative changes, Illinois family law still does not cover every aspect of a civil union commitment. One of the current cracks in our statutory law involves stepparents’ rights following the end of a civil union. Currently, the quoted from language regarding the definition of “stepparent” excludes members of civil union.
[This would change with HB2741. It will make changes to Sections 600(l) and 602.9(a)(3) of the IMDMA: (Definitions and Visitation by Certain Non-Parents) https://legiscan.com/IL/bill/HB2741/2021. See our summary regarding the 2021 new legislation.]As it stands in June 2021, the IMDMA contains only the word “married” and has not yet added the phrase “joined in a civil union.” Based upon a recent appellate court decision, this wording prevented former partners of a civil union from being legally recognized as stepparents.
This was the background to the Fifth District 2019 appellate court’s decision in Sharpe v. Westmoreland,7 This case involves an interlocutory appeal brought by a partner to a civil union whose partner has died. The appellate court had ruled that this partner did not have standing under the IMDMA to seek visitation of a minor child as a step-parent. After the death of the child’s biological father—who had entered into civil union with his female partner—the partner filed a petition, seeking visitation rights and allocation of parental responsibilities for the biological father’s child of a different relationship. During the father’s life, he and the biological mother had equal custody of the child and the father’s residence was considered the child’s legal residence. Following the father’s death, however, the biological mother began to deny the partner visitation with the child, A.S., even though the child expressed a desire to live with the partner. The trial court granted the petition for leave to intervene of the father’s partner, determining that she had standing as a step-parent to seek visitation and parental responsibilities. The appellate certified two questions to the appellate court, both of which asked, in essence, whether a civil union partner is a step-parent as defined by the provisions of the IMDMA that providing standing to stepparents (and others) to seek visitation and parental responsibility. The appellate court answer the certified questions in the negative. It noted that Section 602.9 of the IMDMA at this time specifically includes only the word “marriage” and does not include any phrasing indicating that step-parentage rights apply to the partners of a civil union.[1] It reasoned that the legislature’s omission of any reference to partners joined in a civil union in the definition of stepparents evidenced its intent to exclude civil union partners from the category of nonparents who have standing to seek visitation.
The Illinois Supreme Court heard arguments regarding this decision in its 2020 Covid-19 session and in a well-reasoned decision reversed the appellate court, affirming the decision by the t. Two certified questions, both which asked, in essence whether a civil union partner is a “step-parent” as defined by the IMDMA provisions that grant stepparents standing to seek visitation and parental responsibilities of their stepchildren. The Court concluded:
We find that, in enacting the Civil Union Act, the General Assembly intended to create an alternative to marriage that was equal in all respects. This intent was not limited to partners’ rights as to each other. When a child’s parent enters into a civil union with an individual who is not the child’s other parent, that individual becomes the child’s stepparent as defined by the Dissolution Act and thus meets that aspect of the standing requirement to petition the court for visitation, allocation of parental responsibilities, or both as allowed therein. We answer both certified questions in the affirmative.[2]
The Court explained its reasoning succinctly:
An important distinguishing factor between our analysis in this case and the relevant analysis in In re Parentage of Scarlett Z.-D., 2015 IL 117904,[3] is that Fulkerson and Sharpe entered into a state-sanctioned form of a committed relationship—which the legislature created and deemed equivalent in all respects to a marriage. Granting civilly united partners standing as stepparents will not, as Westmoreland argues, open the door to other parties who are otherwise not granted standing by the Dissolution Act. Rather, our holding today is limited only to those parties who have chosen to enter into a civil union instead of a marriage. This legal change was a policy decision made by the legislature, not the court. See id. ¶ 68 (noting that “[l]egal change in this complex area must be the product of a policy debate that is sensitive not only to the evolving reality of ‘non-traditional’ families and their needs, but also to parents’ fundamental liberty interest embodied in the superior rights doctrine”).[4]
5 750 ILCS 5/504(a), Pub. Act 100-923 (eff. Jan. 1, 2019).
6 750 ILCS 5/505(a), Pub. Act 99-0764 (eff. Jul. 1, 2017).
7 Sharpe v. Westmoreland, 2019 IL App (5th) 170321, rev’d by 20 IL 124863.
[1] As part of ISBA’s legislative package in 2019, it proposed an amendment to IMDMA to acknowledge civil union step parents have the same rights, in the same fashion as the Supreme Court ultimately decide here. That bill died when Covid hit, but it was reintroduced in 2021 as HB2741 that has now been passed by both Houses.
[2] Sharpe v. Westmoreland, 2020 IL 124863, ¶ 16. https://courts.illinois.gov/Opinions/SupremeCourt/2020/124863.pdf.
[3] See: Section 11-2(e): “Equitable Parent” and the discussion of Scarlett-Z-D.
[4] Sharpe v. Westmoreland, 2020 IL 124863, ¶ 17.
