Emancipation of Minors Act

July 18th, 2014 at 2:10 pm

emancipation, emancipated minor, Illinois family lawyerIn 1980, Illinois state legislature passed the Emancipation of Minors Act which provides a legal mechanism by which mature minors may be able to become wholly independent from their parents or guardians and enter into their own affairs. Generally, it is up to the court that the minor has petitioned to decide if emancipation is in the best interest of the minor.

A mature minor is outlined in the statute as a person who is between the ages of 16 and 18 who can prove to the court that he is capable and willing to handle his own legal and economic affairs. Furthermore, it must be in the best interest of the mature minor to live separately and independently from his parents or guardian in order for emancipation to be granted. The act also attempts to address the plight of homeless minors who would benefit from emancipation because they would be able, with the permission of their guardians, to receive assistance, housing, shelter, and other services.

Termination of Parental Rights in Emancipation of Mature Minors

The emancipation of a minor will ultimately lead to the termination of parental rights of the parents or guardian of the minor child. The termination of parental rights is considered to be an extremely serious matter in Illinois, and the court will generally only entertain the emancipation of the minor in limited and narrow circumstances. Minors, in addition, have a significant number of obstacles when petitioning for emancipation and should not enter into it lightly. It is important to know that complete or partial emancipation of a minor will be barred in the event that a parent or guardian objects to the emancipation. A homeless minor, who has limited connection with his family, will only receive partial emancipation if consistent attempts to unify the family have been made.

Petition Process for Emancipation

The petition for emancipation of a minor may not be filed on his own behalf. Because of the incapacity of the minor to petition the court, the petition will need to be filed on behalf of the minor, either by a “next friend” or by the parent or guardian in charge of the minor.

The petition requires that the minor outline within the petition the following information:

  • The minor’s age,
  • The minor’s affirmed Illinois residency,
  • The reason the minor is seeking emancipation,
  • Information with regards to the minor’s parents, and
  • Any information establishing that he is willing, able, and capable to function and live partially or wholly independent from his parents or guardian and can manage his own affairs.

It is up to the court to ultimately decide if it is in the best interest of the minor to become emancipated or be reunited with his family and the court may decide to partially or wholly emancipate the minor. Partial emancipation will require that the court dictate the specific rights and responsibilities of the minor and the limitations of his emancipation until he is 18 years old.

Rights and Responsibilities of Emancipation

Emancipation gives the minor the legal right to enter into contracts, consent to medical decisions, and be financially and physically independent from his family. The emancipation ruling is subject, however, to the limitations created by the court until the age of 17 and the court will periodically check up on the minor to insure that emancipation is still in his best interests.

Experienced Family Law Attorneys in Naperville

If you are a minor or you are a parent of a minor who is interested in petitioning for emancipation, it is important to understand the implications and consequences of emancipation. Termination of parental rights is a serious issue and one that should be evaluated and discussed with an attorney experienced in family law issues. An experienced Naperville family attorney will be able to answer any questions or concerns you have with regards to the rights and consequences of emancipation of a minor.

Adoptee Access to Original Birth Records

July 14th, 2014 at 12:25 pm

Illinois adoption law, adoptee, birth records, privacy, Naperville adoption lawyerRecently, a number of states have passed new amendments to their adoption laws, which permit adoptees to finally access their original birth certificate with the names of their biological parents. In the past nationwide, adoptees had no legal right to their original birth certificates on the public policy that biological parents who choose adoption should have the right to remain anonymous for any number of reasons (many due to lack of desire to be parents, lack of financial support to be a parent, or the child was begot due to traumatic circumstances such as rape or incest). Connecticut will be the next state in July 2015 to permit adoptees access to their original birth certificates. Currently, 42 states have statutes that seal birth records from as early as the 1930s.

Adoptee Rights in Illinois

Illinois was one of the first states to amend their Adoption Act and force the surrender of the original birth records to any adoptee interested. House Bill 5428 was put into effect on May 2010, and permitted adoptees who were born in Illinois before January 1, 1946 to access their original birth records. Surviving children of the adoptee were also able to obtain a copy of the original records. As of November 2011, adoptees who are older than 21 years of age and born in Illinois after 1945 are permitted to claim their original birth certificates.

Rights of Biological Parents to Remain Anonymous in Illinois

Birth parents who want to remain anonymous must preemptively apply to veto disclosure of their identity on the birth certificate. By vetoing the disclosure, all relevant, identifying information about the biological parent will be deleted from the original birth record. However, the veto disclosure only eradicates information about one biological parent; the other biological parent must request a similar veto to delete his or her own personal information. The death of a biological parent does not veto disclosure. As of May 2014, less than 500 biological parents have requested a disclosure veto to remain anonymous.

Public Policy Considerations for Giving Access to Birth Records

For many adoptees, the desire to access their birth certificates may have nothing to do with locating their actual biological parents. Many just want the information for their own knowledge. Others, however, may find the information extremely important, especially in the circumstances where access to relevant medical history would make a substantial impact on the individual’s life and decisions when it came to their own medical history. Having knowledge that the adoptee might have assumed a debilitating, genetic disorder from a biological parent could aid in not only the initial discovery of a possible genetic disease, but could ultimately save the life of an adoptee who might have waited for the symptoms to occur before seeking help.

Experienced Family Law Attorneys in Naperville

If you are an adoptee interested in obtaining your original birth records, a biological parent who wants to remain anonymous, or a parent to an adoptee who wants to encourage or prevent your child from accessing the original birth records, there are many considerations and factors that must be evaluated. The legal issues surrounding adoption and the right of adoptees to have access to their original birth certificates are complex and difficult and an experienced Naperville family law attorney will be able to go through many of the possible legal issues that might influence your decision. Please contact one of our family attorneys today for more information about adoption laws in Illinois.

Illinois’ Safe Haven Act

July 7th, 2014 at 2:47 pm

safe haven law, newborns, adoption, Illinois family lawIn 2001, the Illinois legislature passed the Abandoned Newborn Infant Protection Act, also known as the Safe Haven Act, with the hope of protecting the number of newborn infants abandoned due to a mother’s severe emotional distress. The Safe Haven Act was proposed and passed in 2001 in response to a number of abandoned newborns who were injured or killed as a result of the abandonment. The law provides women who have just given birth the option, within 30 days of birth, to bring a newborn infant anonymously to hospitals, police, and fire departments without having to face civil or criminal liabilities. The policy was to provide a safe environment for newborn babies in the event that a new mother decides she does not want or cannot take care of the newborn.

How the Safe Haven Law Works

Upon the relinquishment of the newborn infant, it is presumed that the mother has given consent to the termination of her parental rights to the child. It is also presumed that a mother who is relinquishing the infant is also the infant’s biological parent and either expressly or impliedly relinquished the child without the intent of returning for him/her. A parent of the child who has been given up must show evidence to rebut the presumption that she consented to the termination of her parental rights and that she did not, expressly or impliedly, intend on returning for the infant.

The Hospital’s Role in the Safe Haven Law

Under the statute, hospitals are required to accept all newborns and provide any necessary emergency care for him or her. The act of giving the child up to the hospital provides consent to the hospital to perform all necessary and reasonable examinations of the infant. The hospital will be found to have temporary custody of the child until the child is taken into custody by an adoption agency.

The Role of Police Stations and Fire Departments in the Safe Haven Act

If the parent relinquishes the child to a police station or a fire department, it is up to the police station or the fire department to transport the child for medical evaluations to the nearest hospital. The relinquishing parent has up to 72 hours to return to the fire department or police station, and the authorities must provide the hospital information to the relinquishing parent.

Under the Safe Haven Act, immunity is given to relinquishing parents only in the case where the infant has not exhibited signs of abuse or trauma. The Act does not provide immunity for civil or criminal liability where the child shows sign of abuse.

The Safe Haven Act in Effect

In Chicago, the Safe Haven Law has seen success, as in the 13 years that it has been active, there have been 89 children that have been relinquished. Of the 89, almost half (47 percent) of the infants were white, with 29 percent and 16 percent being black and Latino, respectively. Almost 34 percent of the women who relinquished their children were between the ages of 13 and 17 years old (16.82 percent) and 31 and 41 years old (16.82 percent).

The Safe Haven Law was put into place because of the new drive to protect newborn children abandoned in unsafe environments. There are a variety of legal issues and concerns when deciding to give up your child, whether through the extreme decision of the Safe Haven Law or through the more usual route of an adoption plan. Adoption is a difficult decision, whether you are deciding to put your child up for adoption or you would like to adopt a child. It is important to speak with an experienced family law attorney when determining whether adoption is right for you.

If you have questions or concerns about whether adoption is right for you and your family, and need help understanding the legal ramifications of your decision, please contact an experienced Naperville family law attorney. A family law attorney will be able to guide you through the adoption process.

Amendments to Obamacare to Help Support Victims of Domestic Violence

June 26th, 2014 at 12:33 pm

domestic violence, joint taxes, family law attorney, divorce lawyerNew federal tax rules have been amended and rewritten to help support victims of domestic violence, who have separated from their abusive spouses, in claiming healthcare subsidies. The federal tax rules were recently revamped as a result of public outcry to the 2010 Affordable Care Act rules that granted healthcare tax credits for buying insurance only in the cases where the married couple filed their taxes jointly. Originally, married people who filed their taxes separately were not permitted to file for these tax credits. Many groups, as a result, were being financially disadvantaged as a result; victims of abuse, people whose spouses were imprisoned or had disappeared, or couples in the middle of divorce were a few of the identified groups that were unable to claim the premium tax credits due to the original wording of the Act.

The original wording of the Act determined the eligibility for premium tax credits by requiring that an individual must be: a taxpayer who is not a dependent of another taxpayer, who files a married joint tax return (if applicable), and whose household income was 100 percent to 400 percent of the federal poverty line (about $11,500 to $45,960 for an individual) based on the number of household members within the taxpayer’s family.

Victims of domestic violence, based on the original wording, were required to file their taxes jointly with their abusive spouses, and many were forced into a situation where they would need to contact their abusive spouses so as to file a joint return, even at the risk of harm or further trauma.

Many, as a result, would be forced into reconciliation for the purpose of receiving the tax subsidies. Ultimately, the victims of domestic violence who were still married to their abusers for one reason or another were required to choose between their own safety, trauma, and decision to separate from their spouse or receive the benefit of tax subsidies for health insurance. Victims of domestic violence, ultimately, were in a lose-lose situation.

New Qualifications for 2014

The Internal Revenue Service has added for the 2014 fiscal year, in connection to the new ruling for domestic violence victims, that a married taxpayer qualifies if he or she:

  • Files the 2014 tax return as married but filing separately;
  • Lives separately from his/her spouse at the time of the tax return filing;
  • Claims that the reason for filing separately is due to the circumstances of domestic violence; and
  • That he or she can show that b) and c) are present.

The new ruling also permits an extension for those who have yet to register for Obamacare and requires that the individual swear that he or she qualifies (based on the honor system) for the extended, special enrollment period.

The regulation, though a giant stride toward helping victims of domestic violence to acquire health insurance without having to contact their abusive spouse, still does not have a solution for victims of domestic violence who fled from their home less than six months ago.

If you are a victim of domestic violence and have been considering a separation or divorce from your abusive spouse, please contact an experienced Naperville family law attorney who will be able to provide guidance through this difficult time and legal solutions that may apply to your current situation.

Preparing for a Divorce

June 23rd, 2014 at 12:32 pm

Divorcedivorce, Illinois divorce, Naperville divorce lawyer, Illinois divorce attorney can be an emotionally, mentally, and physically depleting process; the separation of two individuals, especially based on the duration of their partnership, can lead to an exhaustive amount of entanglements and loose ends. Sometimes, by the middle to end of the divorce settlement, there is an overwhelming feeling that “life will get better if I acquiesce to every desire of my ex-partner so that I can continue to live my life and move on.”

However, these desires will lead to further discontent at the end when you realize that you were left with considerably less than what you believe was your share. Before the beginning of any divorce proceeding and settlement agreement, there are few things that divorcing spouses should do to prepare for the long-haul marathon of divorce.

Create a Financial Plan

The most difficult part of the proceeding is figuring out how the division of financial assets will affect the rest of your life. Start by creating a range of scenarios, depending on the amount of money, property, or assets that you want. If you have included, for example, your primary residence on your “want” list, it is important to understand how much it is worth, the amount of money that is needed to maintain the residence and/or any emergency renovations throughout the years, whether spousal maintenance is needed to maintain the residence, whether you could afford the domicile if the maintenance were to end or your financial situation were to change, and what the tax implications of this asset are.

By listing your largest assets first, your financial range will suddenly come into focus on what you can afford once you are separated and what you can live without. At the end of the day, it is possible that the primary residence is more expensive or more of a hassle than it is worth, and another residence instead might make more sense.

Imagine the Future

Though the present may be gloomy, focusing on the future is extremely important because it reminds you that there is a light at the end of the tunnel. Imagining your new future will also help you evaluate your financial plan. In your idealized future, does it make sense for you to be the primary caretaker of your child? Is your spouse in a better position to be the primary caretaker? What is the ideal situation for you when it comes to your children? These are questions that can help you prepare for whatever the future may hold.

Get Support and Stay Healthy

Being able to either talk (or not talk) about your divorce to another person may be the best way to handle your situation. Sometimes bouncing ideas or gaining perspective from the people who know you the best may help you to move the settlement along. Another person’s perspective might help you determine that you no longer want a specific asset due to significant tax encumbrances. Also, staying healthy, minimizing alcohol consumption, sleeping well, and staying active will help you to make better choices and keep your mental and emotional balance.

These are a few pieces of advice to help you before the initial stages of a divorce settlement. The final and most important piece of advice is to find a family law attorney who you trust and you believe will be your biggest advocate and supporter throughout the process. An experienced attorney will help empower you through this difficult time, and join your expectations with realistic goals and strategy to meet your needs. If you are considering a divorce and would like more information tailored to your present marital situation, please contact one of our experienced Naperville family law attorneys.

Dissolution Action Stays: Putting a Freeze on Your Assets

June 16th, 2014 at 3:52 pm

dissolution action stay, divorce, division of property, Illinois divorce lawyer, Naperville divorce attorneyAt the commencement of a divorce proceeding, there may be a lot of confusion between the couple. They may not know what the next steps are and what they may or may not do now that a divorce is underway. There are a few different measures that take place after the filing for a divorce, which help protect spouses from their ex-partners and certain actions that the ex-partner can take to injure the other physically or financially. A “dissolution action stay” is a legal remedy and type of temporary restraining order, that upon the filing of a divorce, restrains both parties from being able to do three things.

1. A Freeze on Financial Marital Assets

First, the restraining order applies to the marital property of both spouses. The order requires a financial freeze on all marital property to ensure that neither spouse can destroy, transfer, spend, damage, dispose of, hide, or sell any property that falls within the marital scope. The order, however, does not put an entire freeze on the financial flow of bank accounts and other property used in the usual course of business. Both parties still need access to their credit cards, bank accounts, cars, homes, and other necessities of life to maintain the status quo. The purpose of this restraining order is to ensure that high-value assets do not go missing, are sold, or destroyed before the Court can partition the marital property as a result of the dissolution of marriage. The other purpose is to protect the spouse with the least amount of control over the financial marital property; this is extremely important if one of the spouses has been the sole breadwinner while the other spouse was the homemaker. Financial equity is the most important aspect of property division.

2. A Freeze on Physical Violence or the Threat of Physical Violence

Next, the restraining order can be used to physically protect both parties. Both parties may not physically abuse, harass, stalk, intimidate, or interfere with the other’s personal liberties once the commencement of the divorce proceedings. This is important as tensions are high during a divorce and it is necessary that both parties feel safe mentally, physically, and emotionally. Generally, spouses, after years of marriage, know the other’s strengths and weaknesses and the restraining order limits the amount of damage and harm between spouses. This type of order is also known as an Order of Protection in the domestic violence context.

3. A Freeze on the Movement of Minor Children

Finally, the restraining order may apply to minor children and the ability of either party to remove the child or children from Illinois. This provision ensures that the child remains in the same or similar location to ensure that divorcing spouses have custody and visitation rights of the children before the Court’s custody proceedings. Maintaining the child in Illinois, and ensuring that neither parent can remove the child from the state, will make sure that the child maintains the life that he/she is accustomed to and is not sent out of the state or out of the country as a manner to harm the other spouse.

The dissolution action stays are extremely important at the outset of a divorce, and help delineate the boundaries and rules at the beginning of the proceedings. Respecting the dissolution action stay is the best way to maintain a respectful relationship between you and your ex-partner. If you are currently considering a divorce, please contact one of our experienced Naperville family law attorneys who will help guide you through the divorce process and any questions you may have about the effect that a dissolution action stay will have on your life.

The Putative Father Registry: The Right to be Notified

June 6th, 2014 at 12:45 pm

putative father, parental rights, unmarried father, Illinois divorce lawyerThe rights of the unmarried father are generally limited in our society, but in the last few decades, there has been a push by states to permit them to acquire a certain amount of parental rights. Illinois is one of 33 states to have installed the Putative Father Registry, which is a state-by-state database that connects unmarried fathers to the mothers of their children. The rights of the unmarried father are limited due in part to societal preconceived notions that unmarried fathers are not interested in becoming parents to a child begot out of wedlock. The Putative Father Registry permits men, who believe that they may have fathered a child, to receive notification before the child is put up for adoption by the mother. It does not, however, provide the right to the father to petition for any legal or physical custody nor does it determine paternity of the father.

Illinois Putative Father Registry

Each state requires different processes for registering to be on the Putative Father Registry, but in Illinois, the database is online, and is an easier process than in many other states. The Department of Children and Family Services requires that the putative father must include the following in his registration:

  • Name, date of birth, address for where the notice may be sent, social security number, and must include also the aforementioned information about the mother, so that the father and mother are linked.

The putative father may register at any time before the birth of the child, but no later than 30 days after the child has been born.

An adoption agency or any person looking to adopt the child is required to search the registry to determine if there is a putative father match to the child in question and is required to notify the father before adoption procedures may take place.

Statute of Limitations for Putative Fathers

Fathers who do not register before the 30-day post-birth deadline are barred from bringing a petition or action in the name of the child. However, if the father can show through clear and convincing evidence that he was unable to register, through no fault of his own, then the father may register 10 days after it becomes possible to register. It is important to note that ignorance of the pregnancy or birth is not accepted as a reason for failing to register.

Opposition and Advocate Opinions on Putative Father Registries

There are both opponents and advocates for this system. Opponents believe the system is ineffective. First, the Putative Father Registry is generally unknown; for example, in 2004 in Florida, 900,000 babies were born to unwed parents, but only 47 men were registered. Second, the Putative Father Registry assumes that the parents know each other enough to fill out the paperwork. However, how many people exchange their social security numbers with their one-night stands? Finally, a pregnant mother may not want to be intimately linked with her ex-partner due to a history of domestic violence and/or sexual assault. Advocates, on the other hand, believe that though women have strong rights when it comes to their bodies and the rights to decide the best interest of the child, there should be room in our society for men to have some rights with regards to their child as well.

If your child is about to put up for adoption, or you would like to petition for parental rights, please contact one of our skilled Naperville lawyers who will be able to review your case and provide guidance as to your parental rights and any actions that you may take.

What’s in a Name?

May 30th, 2014 at 12:55 pm

name change, Illinois, Naperville, marriage, divorce, family lawThere are many events in our life that encourage us to think about our identity. Generally we understand our identity based not solely on our history or background but on the most basic level: our first and last name. At times of divorce, marriage, having kids, or adopting children, there is always the question of whether or not to change one’s name so that the family unit shares a name. There are several social and legal reasons to consider whether a name change is right for you. The following are some concerns one should evaluate when deciding whether to change one’s name:

  • How will a name change affect your career? Is your name associated with a business, a client base, or a brand? Is your name difficult and unwieldy for clients to pronounce or remember and therefore taking your spouse’s name might be easier?
  • How will a name change affect your legal and financial life? It may be a difficult transition if your name is attached to a lot of legal and financial documents. Name changes require that you apply for a new social security card, new proofs of identity like a driver’s license, and even a passport. A name change also requires that you adjust titles, liens, credit information, and voter registration. The more of a paper trail that you have created under one name, the more taxing the transition might be, and may demand many hours in line at bureaucratic institutions. Note: It is legally impermissible to change your name to avoid debt or other financial/legal obligations.
  • What does a name change mean to you? Though a name change is personal to you and your family, not changing your name, especially after a wedding, may create some social friction, especially in more conservative, traditional households. In a recent study, 10 percent of Americans stated that a name change represented one’s level of dedication to the marriage. Fifty percent of Americans believe that a woman’s name change to her husband’s last name is required by law (it is not).

Illinois’s Legal Requirements and Restrictions for a Name Change

In Illinois, there are some restrictions and requirements if you decide to change your name:

  • The person must have resided in Illinois for at least six months. After the six months, he or she must petition the circuit court of the county to review the application. It is up to the Court to permit or disallow the name change.
  • If you have been convicted of a felony, and you were not pardoned, there is a waiting period of 10 years from the discharge of the sentence.

The following crimes, if committed, charged, convicted, and not pardoned, revoke the right of a name change in Illinois:

  • Identity theft and aggravated identity theft;
  • Felony or misdemeanor indecent solicitation of a child or of an adult; or
  • Any other offense that puts the person’s name on the Sex Offender Registry.

Name Changes for Minors

An adopted child may change his/her name after a period of three years of residing with the family and being acknowledged and held out as the adopted child of the family.

A minor may get his or her name changed if the court finds by clear and convincing evidence that the name change is in the best interest of the child, and will evaluate:

  • The wishes and reasoning of the parents;
  • The wishes and reasoning of the child; and
  • The interrelationship between the child and his/her parents, step-parents, siblings, and other family members who may be affected by the change.

Ultimately, a name change is a personal choice and up to the individual to decide if it is right for him/her. If you are considering a name change and would like more information about the legal ramifications, please contact one of our experienced Naperville family law attorneys who will be able to provide guidance and counsel on any concerns or issues you may have with regards to your marriage or divorce.

The Declaration of Invalidity of Marriage and the Rights of the Putative Spouse

May 22nd, 2014 at 2:24 pm

Putative Spouse, annulment, declaration of invalidity of marriageIn Illinois, there are a few different ways to end a marriage. Though divorce is the most common route, it generally tends to be time-consuming, acrimonious, and expensive. For new marriages, there may be a less difficult way to end a marriage. In Illinois, a declaration of invalidity of marriage, also known colloquially as an “annulment,” may be allowed by the Court if one of the following elements were present at the time of the marriage:

  1. One or both of the parties was unable to consent to the marriage due to:
    • Mental incapacity;
    • A debilitating illness making it impossible to understand one’s choices;
    • Incapacity from alcohol, drugs, or other incapacitating substances; or
    • An inducement into marriage due to force, duress, or fraud.
  2. One of the parties is unable to consummate the marriage by sexual intercourse due to a physical incapability and, at the time of the union, the other party did not know about this physical incapability;
  3. One of the parties was 16 or 17 years of age at the time of marriage and did not have parental or judicial approval; or
  4. The marriage is prohibited for some other reason, such as in the case of bigamy.

Time Sensitivity of an Annulment

With regards to timing, one of the parties (or his legal representative or guardian in the case of mental incapacity or infirmity) may bring an action for a declaration of invalidity of marriage within 90 days of discovering one of the elements enumerated above. However, an annulment may not be allowed after the death of either of the parties, if one of the first three elements are the reasons for the declaration.

Establishing Status as a Putative Spouse

Though there are reasons for an annulment to be sought, there are protections for the spouse who enters into a marriage believing that none of the above conditions are present and who believes that the marriage is completely valid. The spouse, in this case, is known as the “putative spouse,” and the Court, based on reasons of justness and equity, believes that he or she deserves legal rights that would normally be conferred onto a legal spouse. A spouse may show that he or she is a putative spouse if the following elements are proven:

  1. A marriage ceremony occurred between the couple;
  2. The couple cohabitated; and
  3. One or both of the parties had a good faith belief that they were legally married, even if they were not.

Legal Rights of the Putative Spouse

The status of the putative spouse is maintained throughout the entire time period in which he or she believed in good faith that the couple was legally married. The purpose of the putative spouse doctrine in Illinois is to protect the spouse who entered into the relationship believing that the marriage was valid, and was unaware that there were conditions that made the marriage subject to a declaration of invalidity. The putative spouse will have the legal rights to:

  1. Property acquired during the period that the spouse believed the marriage was valid;
  2. Alimony and support rights; and
  3. Inheritance in the case of the death.

These are just some of the legal rights that could be conferred onto the putative spouse. These rights, however, must be balanced and understood in comparison to any other spouse, legal or putative, that is also looking to receive compensation and property for the time in which the marriage was believed to be or actually was valid. This is to protect all spouses, legal or putative, who are subject to fraudulent marriage, and to ensure that they are taken care of once the real facts come to the surface.

Contact a Naperville Family Law Attorney

If you believe your marriage qualifies for an annulment or you have reason to believe you are a putative spouse, please contact one of our experienced Naperville family law attorneys who can evaluate your current situation and provide you counsel and guidance throughout your annulment process. Annulments are time-sensitive and our attorneys are ready to spring into action on your behalf.

De-Facto Parents: Third Party Child Relationships

May 15th, 2014 at 12:57 pm

nontraditional family, child custody, Illinois family lawyer, Illinois adoption attorneyNontraditional families have been growing over the last few decades, but it is only now that Illinois legislation is catching up with these families by offering protection to the members who make up nontraditional families. Illinois is currently revising its Probate Code, as well as its Marriage and Dissolutions of Marriage Act, to assign specific roles to non-biological parents who have served as de-facto parents or psychological parents in children’s lives. These third parties may be adoptive parents, unmarried biological fathers, stepparents, or same-sex partners. The status of “de-facto parent” allows these third parties to be treated as equal to the child’s biological and custodial parents and provides standing for the third party to enforce parental rights such as visitation and custody.

Illinois Legislation for De-Facto Parents

New legislation has been included in Illinois to afford men and women who are not the legal or biological parent of the child to become a “de-facto” parent, but they must first satisfy the following elements:

  1. For the first two years of the child’s life (birth until his or her second birthday), the de-facto parent must have lived in the same household as the child;
  2. The child must have only one legal parent recognized by the law;
  3. The de-facto parent must have acknowledged the child as his own within the community; and
  4. The legal parent must have consented to the de-facto parent holding the child out as his own.

The Importance of a Non-Legal Parent Establishing A Child-Parent Relationship

It is crucial for those non-legal parents who satisfy the requirements of a “de-facto” parent to go through the process of becoming the legal parent of the child. Even if the non-legal parent is in a happy and committed relationship, at the end of the day, he or she has little to no substantive, parental rights when it comes to the child. For example, in the event of a medical emergency, he or she may not be able to have a say in the best course of action for the child. In addition, in the event of a divorce, being the non-legal parent means that once the relationship has ended, he or she may have no rights to visitation or custody of the child. The parent-child relationship may be cut off with little to no recourse.

How to Prove a Parent-Child Relationship

It is important for a non-legal parent that is considering establishing themselves as a de-facto parent to make his or her status official by legally adopting the child. To prepare for the process, the non-legal parent should not only satisfy the abovementioned required elements, but also should describe and prove the role that the non-legal parent played in the child’s life, as well as any parental responsibilities and obligations that he or she took on.

Finally, to gain standing to petition for any of these parental rights in court, the non-legal parent must show that there was a triggering event that led to a disruption of the child-parent relationship. This could be the end of the romantic relationship between the non-legal parent and the legal parent.

Ultimately, it will be up to the court to decide whether it is within the best interest of the child to grant parental rights to the non-legal parent. Showing that he or she was a de-facto parent will be the first step.

If you are interested in becoming the legal guardian or adopting the child of your significant other, please contact one of our experienced Naperville attorneys for more information on the adoption process.

Illinois State Bar Association DuPage County Bar Association American Academy of Matrimonial Lawyers Super Lawyers Naperville Area Chamber of Commerce

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