Can a Non-Biological Parent Get Custody or Timesharing in Illinois?
In Illinois, the law recognizes that a parent-child relationship is not always defined by biology. While biological parents have superior rights, it is possible for a non-parent who has filled a parental role to be granted legal responsibilities for a child.
If you qualify as a non-parent (which includes stepparents, grandparents, and other caregivers), you’ll need to meet certain criteria and provide sufficient evidence to the court.
If you have been a primary caregiver for a child and are worried about preserving that bond, call our Barrington child support attorneys at (847) 221-5511 to discuss your situation.
The First Hurdle: Do You Have “Standing” to Ask for Parental Responsibilities?
Before you can ask a judge to grant you rights to a child, you must first prove you have the legal right to even make the request. This is called “legal standing.” In plain English, standing is your ticket into the courthouse. Without it, a judge cannot hear the merits of your case, no matter how strong your bond with the child is or how compelling your reasons are.
The general rule for a non-parent to file for parental responsibilities is that the child is not in the physical custody of either biological parent. This is a critical point. The term “physical custody” here means more than just where the child is sleeping at the moment you file paperwork. The court looks at whether a biological parent has voluntarily relinquished the care, control, and responsibility for the child to someone else. This is a high bar to meet and prevents people from filing lawsuits simply because they disagree with a parent’s decisions.
Standing for Stepparents
Illinois law provides a specific pathway for stepparents. Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601.2(b)(4)), a person who is not a biological parent but is a stepparent can file a petition for parental responsibilities if they can demonstrate several conditions. To have standing, a stepparent typically needs to show that:
- The parent who has the majority of parenting time is either deceased or disabled and cannot care for the child.
- The stepparent provided care for the child before filing the petition.
- The child wishes to live with the stepparent.
- A court finds that it is in the child’s best interests for the stepparent to be granted these responsibilities.
Standing for Grandparents, Great-Grandparents, and Siblings
The rules for other close relatives are also quite specific. Grandparents, for instance, may have standing to petition for full parental responsibilities if a biological parent is deceased and certain other conditions are satisfied. However, more commonly, these relatives seek parenting time (formerly “visitation”) rather than the allocation of all parental responsibilities.
The rules for court-ordered parenting time for grandparents, great-grandparents, and siblings are found in section 750 ILCS 5/602.9 of the statute. A petitioner must show that a parent has unreasonably denied them parenting time and that this denial causes undue harm to the child’s mental, physical, or emotional well-being.
What if I Don’t Have Standing for Full Responsibilities?
Even if you do not meet the high threshold for seeking full parental responsibilities, you may still be able to ask for court-ordered parenting time. As mentioned previously, the statute provides a potential path for grandparents, stepparents, and siblings. Success in these cases often hinges on proving that the denial of contact is causing the child actual harm. A lawyer can assess the specifics of your situation and provide clarity on your options.
The “Psychological Parent” and “De Facto Parent” Concepts in Illinois
What about individuals who have acted as a parent in every way but name, without being a stepparent or other relative? These situations sometimes involve terms like “psychological parent” or “de facto parent.”
- A psychological parent is an adult who, despite having no biological or formal legal connection to a child, has formed a strong, bonded parent-child relationship by consistently taking on caregiving responsibilities.
- A de facto parent is a similar term, generally referring to an adult who has lived with the child and acted as a primary caregiver and financial supporter for a significant period.
Historically, Illinois courts have been very hesitant to formally adopt these doctrines as a basis for granting standing in custody-type cases. The Illinois Supreme Court has confirmed that a related concept, “equitable adoption,” can apply to inheritance cases but does not grant a person standing to seek parental responsibilities or parenting time.
However, the legal landscape is always evolving. Some Illinois appellate courts have, in very specific and unique circumstances, recognized a person as a “psychological parent” and granted them parental responsibilities. These cases are rare and typically happen only when the non-parent was the sole acting parent for the child for a considerable length of time. Relying on these concepts is legally challenging, and your case is always strongest when you meet the specific standing requirements outlined directly in the Illinois statutes.
The Core of the Decision: What is in the “Best Interests of the Child”?
If a non-parent successfully establishes standing, the case moves to its second and most significant phase. From this point forward, the court’s entire focus shifts to determining what outcome is in the child’s best interests.
Illinois law begins with a strong legal assumption, known as a rebuttable presumption, that a child’s best interests are served by being in the care, custody, and control of their biological parent. To be successful, a non-parent must present clear and convincing evidence to overcome this presumption and show the court why granting responsibilities to them is better for the child.
To guide this decision, judges must consider a list of factors provided by the law, specifically 750 ILCS 5/602.5 and 602.7. The court will ask questions related to these factors:
- The Wishes of the Child: Depending on the child’s age and maturity, the court will consider their expressed preference.
- The Wishes of the Parties: The court hears what the biological parents and the petitioning non-parent want for the child’s future.
- The Child’s Adjustment: The court will assess how the child is faring in their current home, school, and community environment. A change that disrupts a stable environment is disfavored.
- The Health of Everyone Involved: This includes the mental and physical health of the child as well as all adults seeking parenting time or decision-making power.
- Past Caretaking Roles: The court gives significant weight to who has historically been responsible for the child’s daily care. This includes things like making meals, helping with homework, scheduling doctor visits, and providing emotional support.
- Willingness to Foster a Relationship: The court will analyze how willing each party is to encourage a close and continuing relationship between the child and the other party. A parent who tries to alienate a child from another caring adult is viewed negatively.
- History of Violence or Abuse: Any history of physical violence or threat of violence by a party, whether directed at the child or another member of the household.
- The Child’s Needs: The court considers the specific developmental, emotional, and physical needs of the child in question.
Building a compelling case around these factors requires concrete evidence. This can include school and medical records, report cards, photographs, text messages and emails, and testimony from witnesses like teachers, neighbors, or family friends who have firsthand knowledge of your relationship with the child.
Secure Your Role in a Child’s Life
The bond you have with a child you have raised is precious. Don’t leave the most important relationship in your life to chance or guesswork. The team at Manassa Wieczorek, P.C. is here to provide the guidance you need. Call us today at (847) 221-5511 to take the first step.
