Survey of Illinois Law: Stepparent Childcare
Parness, Jeffrey A.
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In Illinois, the “liberty interests of parents” are reflected in the “superior rights doctrine,” which holds, as elsewhere, that parents have superior rights regarding the care of their children. This doctrine is necessitated by U.S. Supreme Court decisions, including Troxel v. Granville in 2000. The superior rights doctrine is incorporated into some Illinois statutes, as when childcare may be afforded to a nonparent “only if” the child “is not in the physical custody” of a parent and as when “reasonable visitation privileges” may only be afforded a stepparent who has lived with the child for at least five years. The Illinois superior rights doctrine was employed in 2012 to deny childcare opportunities to a former stepfather over maternal objection in the case of In re Marriage of Mancine. There, the stepfather allegedly assumed, with the mother, “a caregiving role over a significant period of time.” There was an explicit rejection of the de facto parent doctrine. In reviewing Troxel and Mancine, as well as other American state precedents, this article urges broader stepparent childcare opportunities be recognized in Illinois, especially where there is only one parent under law. It prefers expansion via new special statutes on stepparents, but recognizes expansion could also come via new general statutes expanding the definitions of legal parenthood or of those nonparents who are eligible to seek childcare. Without imminent General Assembly action, the article urges incremental common law expansions of stepparent childcare opportunities in Illinois.