Posted on August 22, 2022

Can A Child Sue A Parent In Illinois?

Divorces with children involve multiple parties: two parents and the children they birthed or adopted. The children in a family are affected by their parents’ actions. The children can seek justice in the courts just like any other party in Illinois.

Can A Child Sue a Parent For An Accident In Illinois?

Kids get hurt. Sometimes the child getting hurt is a parent’s fault. If the child is injured through the fault or negligence of a parent, can the child sue the parent in Illinois?

The Illinois Supreme Court of Cates v. Cates, identifies precisely when and how a child can sue a parent and when a child CANNOT sue a parent.

There’s an old rule called the parent-child tort immunity doctrine.

“The parent-child tort immunity doctrine [holds] that parents are immune from tort actions brought by their unemancipated minor children.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

“Illinois courts have relied consistently on three major public policy considerations for the parent-child tort immunity doctrine: (1) the preservation of family harmony, (2) the discouragement of fraud and collusion, and (3) the preservation of parental authority and discipline. Illinois courts have more consistently espoused the preservation of family harmony rationale.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

If the parent’s behavior was purposeful, the parent can be sued by their child

“[P]arent-child tort immunity doctrine did not bar the child’s action against his father for willful and wanton misconduct” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

Parents, generally, love and want to protect their children. Injuries are usually by accident and not the result of “willful and wonton misconduct.”

Most children who are hurt due to the actions of a parent are hurt because the parent was negligent.

“Illinois courts…have carved out additional exceptions to the immunity in the area of negligence. An exception to the immunity rule is now recognized where a child sues a deceased parent… Another exception allows children to sue grandparents… Illinois courts also reject application of the parent-child tort immunity doctrine as a bar to third-party contribution actions against allegedly negligent parents…Another exception allows a parent-child negligence action where the alleged duty is owed to the general public.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

Parent-child immunity still exists if the actions that led to the injury where parent-child activities. Illinois courts do not want to get in the middle of a family’s dynamics by allowing kids to sue their parents for “bad parenting.”

“Courts should not be involved in deciding matters between parent and child which concern decisions which those persons are uniquely equipped to make because of that relationship; to allow otherwise would unnecessarily and obtrusively inject courts into family matters which they are ill-equipped to decide. Such matters, by definition, involve parental discretion in discipline, supervision and care.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

In law, everything is a balancing act. Children need to be compensated for their injuries at the hands of another…but not if the family relationship is destroyed in the process.

“A public policy based on the principle of preserving family harmony necessarily argues against every kind of intrafamily litigation. The allowance of a variety of intrafamily negligence actions by exception reveals that the family harmony rationale, an apparently absolute principle, is in fact balanced against other considerations or is not, as a practical matter, a viable consideration. In truth, the traditional policy of family harmony is no longer viable…The focus has shifted to a concern with preventing litigation concerning conduct intimately associated with the parent-child relationship. The exceptions consistently demonstrate that where the family relationship is dissolved or where that relationship has ceased to exist with respect to conduct giving rise to the injury, the immunity will not be applied. This is so because the immunity exists only to further the parent-child relationship, and where that relationship is not impacted, the policies supporting the doctrine lose their persuasive strength.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

What’s really going on with children suing parents is this: A parent is driving a car. The parent gets in an accident with the child in the car. The child is injured. The injury requires the child to sue someone to pay for the medical care. The only person who can be sued is the person at fault, the parent. But, the parent doesn’t really pay for the medical care…the automobile liability insurance pays for the medical care.

“Where liability insurance is present, the parent and child are only nominally adverse; the “real” defendant is the insurer. Further, negligence actions between parent and child are rarely brought, except in cases where insurance is present… The fact that liability insurance significantly undercuts a traditional basis for the rule is a reality, however, which must be considered by courts…[After an accident] the child and [the parent are] only nominally adverse, as in the case of automobile negligence cases involving insurance.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

Illinois courts find that “[t]he negligent operation of a vehicle even when exercising visitation privileges does not constitute conduct inherent to the parent-child relationship.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

Car accidents are a great example of what the parent-child tort immunity doctrine does not cover. Whether parent-child immunity can be invoked or not to prevent a child from suing a parent should be based on “whether the alleged conduct concerns parental discretion in discipline, supervision and care of the child.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

So, in Illinois, children cannot sue their parents for bad parenting, but they can sue their parents for bad driving, etc.

This minimization of parent-child tort immunity doctrine doesn’t let Illinois parents off the hook for bad parenting. It just means children cannot initiate law suits against their parents for bad parenting. “Parents in Illinois must conform their treatment of their children within certain socially acceptable limits or face criminal and civil actions by the State.” Cates v. Cates, 619 NE 2d 715 – Ill: Supreme Court 1993

More likely, if a parent is so bad that the courts need to get involved, the person who will sue the parent…is the other parent. In such a case, that parent will reach out to an Illinois family law attorney and file the appropriate action in domestic relations court to recoup money from the wrongful parent and keep the children safe in the future.

Can A Child Sue A Parent For Child Support and/or College Expenses In Illinois?

The purpose of the Illinois Marriage And Dissolution Of Marriage Act is to benefit children…but that doesn’t mean children get to sue their parents in Illinois.

Children simply do not have standing to appear in an Illinois court to initiate actions against their parents under the Illinois Marriage and Dissolution of Marriage Act.

“It is well established that a court’s jurisdiction in a dissolution of marriage action is conferred only by statute and it must act within the statutory grant and may not rely upon its general equity powers… Section 511 of the Illinois Marriage and Dissolution of Marriage Act the general procedures by which a judgment of dissolution may be enforced, but it does not suggest they may be undertaken by one who is not a party to the judgment. Nor do any other sections of the Marriage and Dissolution of Marriage Act, or the Uniform Act after which it was patterned, expressly create a right in a child, either during his minority or on becoming an adult as in the present case, to enforce the provisions of his parents’ judgment of dissolution or divorce.” In re Marriage of Garrison, 425 NE 2d 518 – Ill: Appellate Court, 2nd Dist. 1981

A child can never start a case against their parent asking for something that the Illinois Marriage and Dissolution of Marriage Act provides for (like child support or college expenses)

“[T]he [Illinois Marriage and Dissolution of Marriage] Act creates no right in a child to directly petition the court for benefits which are potentially available under the provisions of the [Illinois Marriage and Dissolution of Marriage] Act.” Miller v. Miller, 513 NE 2d 605 – Ill: Appellate Court, 3rd Dist. 1987

“[A] child of divorced parents does not have standing to bring a separate action in his own name to enforce the provisions of his parents’ divorce decree.” Miller v. Miller, 513 NE 2d 605 – Ill: Appellate Court, 3rd Dist. 1987

However, if the parents agreed to child support or college expenses, a child of the divorced parents used to become a third-party beneficiary of that agreement and can proceed in court based on that standing.

“[I]t is clear that an adult child of divorced parents has standing to enforce the educational provision of the divorce decree on the basis that he or she is a third-party beneficiary.” In re Marriage of Spircoff, 959 NE 2d 1224 – Ill: Appellate Court, 1st Dist., 3rd Div. 2011

“The rule is well established that where a person makes a promise to another, based upon a valid consideration, for the benefit of a third person, such third person may maintain an action on the contract.” Joslyn v. Joslyn (1944), 386 Ill. 387, 400, 54 N.E.2d 475, 481

“Moreover, children who are beneficiaries under a contract entered into by their parents have standing to bring suit against their father to compel his compliance with the contract terms.” Orr v. Orr, 592 NE 2d 553 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

If a “plaintiff is a third-party beneficiary in [their] parents’ Judgment for Divorce, [that] thereby gi[ves them] standing to petition the court to compel [a parent] to provide for [their] college expenses.” Orr v. Orr, 592 NE 2d 553 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

Third-party beneficiary standing for college expenses is now contrary to the statute and no longer allowed (but the concept is useful so I still described it)

“[I]n no event shall the court consider the child a third party beneficiary of that provision.” 750 ILCS 5/513(i)

It is hard to conceive of any other expense which a child could exercise their rights as a third-party beneficiary. All other expenses would have been paid to the other parent or the minor child (who is unable to enter into a contract or have a contract be enforced against them) would not be liable for that expense.

If a child is thinking of suing a parent, trust has broken down completely between the parent and the child. In such cases, aggressive litigation may be the only option to right a wrong or defend oneself from accusations. To learn more about what your rights are in an Illinois domestic relations court, contact my Chicago, Illinois family law firm to speak with an experienced Chicago family law attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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