Posted on July 13, 2022

Stepparents and Divorce In Illinois

Divorce isn’t just the ending of a marriage, divorces can also be a new beginning.  New relationships will blossom and then strengthen. If a divorced person has children, this means that there will be a stepparent situation that everyone will have to embrace and/or deal with. So, how are stepparents treated in a divorce?

What Is A Stepparent Under Illinois Law?

The Illinois Marriage and Dissolution of Marriage Act defines the term “stepparent” explicitly.

“”Step-parent” means a person married to a child’s parent, including a person married to the child’s parent immediately prior to the parent’s death.” 750 ILCS 5/600(l)

So, to be a true stepparent in the eyes of an Illinois court that person must have been married to the actual parent. 

This begs the question, “What is a parent under Illinois law?”

“”Parent” means an individual who has established a parent-child relationship under Section 201 of this Act.” 750 ILCS 46/103(n)

Section 201 of the Illinois Parentage of 2015 then defines a parent for both a man and a woman.

A woman is a parent in Illinois if:

(1) the woman having given birth to the child, except as otherwise provided in the Gestational Surrogacy Act ;

(2) an adjudication of the woman’s parentage;

(3) adoption of the child by the woman;

(4) a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law; or

(5) an unrebutted presumption of the woman’s parentage of the child under Section 204 of this Act.” 750 ILCS 46/201(a)

A man is a parent in Illinois for all the same reasons except for actually giving birth to the child. 

To determine if a man is the parent of a child Illinois does NOT look at the birth certificate or demand a DNA test.  Illinois looks for one little form: The Voluntary Acknowledgment Of Paternity.

“The parent-child relationship is established between a man and a child by:

an effective voluntary acknowledgment of paternity by the man under Article 3 of this Act, unless the acknowledgment has been rescinded or successfully challenged” 750 ILCS 46/201(a)

In conclusion, in Illinois, stepparents are the spouses of parents.

What Right Does A Stepparent Have To Be Around My Child In Illinois?

Getting divorced or breaking up with your children’s other parent is kind of weird when you think about it.  You’re involved in this intimate relationship that has this massive side project: raising children.  Then, you get divorced or break up and you’re no longer intimate…but the side project remains. Your partner in the side-project is now intimate with someone else…who wants to get in on your side project.

This is a sensitive subject. Everyone wants the best for the children but how could a new adult to this situation possibly want the best for the children as much as the actual parents? 

It’s simple, the stepparents don’t always want the best for the children. So, Illinois law puts all of its trust in the actual parent. That includes the decision to allow the child to spend time with the stepparent.

“There is a rebuttable presumption that a fit parent’s actions and decisions regarding ….step-parent…visitation are not harmful to the child’s mental, physical, or emotional health” 750 ILCS 5/602.9

If the parents were married, “[i]t is presumed both parents are fit” 750 ILCS 5/602.7(b)

So, if the parent is exercising parenting time, the stepparent can be there as well.

The only way you can prevent a stepparent or even a new boyfriend or girlfriend from being exposed to a child is to include a paramour clause in your Allocation of Parenting Time And Parental Responsibilities.

My firm’s paramour clauses usually read as follows:

“Neither parent shall introduce the children to a member of the opposite sex with whom they have an intimate relationship until 3 months after the two have begun dating. Neither parent will allow a boyfriend or girlfriend to sleep over while the parent is exercising parenting time until the couple has been dating at least 6 months”

Paramour clauses are impossible to enforce. How can you prove how long someone’s been dating? By the time you get to court to enforce the paramour clause, the couple will have been dating the required time and it will be a moot point.

But, sometimes you just have to put common sense in writing.  Kids need stability and shouldn’t be meeting (much less having sleep overs with) a revolving series of boyfriends and girlfriends.

Right Of First Refusal And Stepparents in Illinois?

If the other parent cannot or is not present with the minor child during that parent’s parenting time, that parent cannot automatically leave the child with a stepparent. 

The parties to an Illinois divorce with children must enter into an Allocation of Parenting Time And Parental Responsibilities when they entered their Judgment For Dissolution Of Marriage at their final divorce hearing.  That Allocation of Parenting Time And Parenting Responsibilities should include a clause that provides for a “right of first refusal.”

“‘[R]ight of first refusal’ means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.” 750 ILCS 5/602.3(b)

Most Allocations of Parenting Time and Parental Responsibilities include a window of absence where the parent exercising their parenting time must inform the other parent of their absence. 

For example, my right of first refusal clauses usually read as follows:

“If a parent will be unavailable for part or all of his or her scheduled time with the child because he/she is out of town and/or will be otherwise unavailable for more than 12 hours, then that parent shall notify the other parent, who shall have the option of having the child with him or her during that time. This provision specifically excludes family members or other third party care providers, neither of which trump either party’s right to exercise his/her right of first refusal.  Notification shall be given at least 24 hours in advance, or, as soon as is practicable”

If a parent has to leave a child with a stepparent in an emergency, that is acceptable if “the need for child care is attributable to an emergency.” 750 ILCS 5/602.3(a)

Do Stepparents Affect Child Support In Illinois ?

If a stepparent is making a lot of money and living with a parent (and probably the children) that can affect child support both for the payee and the payor.

Child support in Illinois is calculated based on the parents’ incomes. Income includes “a gain or recurrent benefit that is usu[ally] measured in money.” In Re Marriage of Rogers, 213 Ill. App. 2d at 136-137

So, the benefit that a parent receives from a stepparent could be seen as income…but, in reality, it almost never is. 

A stepparent can always say, “This is my house, my spouse just lives here.  It’s not a benefit that can be accounted for in money.”

Personally, I think that Illinois divorce courts don’t want to have two divorces on their hands by ruining the second marriage with the problems from the first. 

Do Stepparents Affect Maintenance (Formerly Known As Alimony) In Illinois?

An honest-to-goodness stepparent means maintenance is terminated in Illinois. If the couple is married, there is no doubt.

“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 501(c)

If the couple just lives together, maintenance is over in Illinois.

“An obligor’s obligation to pay maintenance or unallocated maintenance terminates by operation of law on…the date the court finds cohabitation began.”750 ILCS 501(c)

Can a Stepparent Get Custody Of A Child In Illinois

Many people who get divorced…get divorced again.  Divorce stepparents have understandable attachments to their stepchildren…but very little right to those stepchildren.

A stepparent can ask for custody of a child in Illinois.

“A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court:

by a step-parent, by filing a petition, if all of the following circumstances are met:

(A) the parent having the majority of parenting time is deceased or is disabled and cannot perform the duties of a parent to the child;

(B) the step-parent provided for the care, control, and welfare of the child prior to the initiation of proceedings for allocation of parental responsibilities;

(C) the child wishes to live with the step-parent; and

(D) it is alleged to be in the best interests and welfare of the child to live with the step-parent as provided in Section 602.5 of this Act” 750 ILCS 5/601.2(b)(4)

Stepparents, do not get your hopes up! The United States Supreme Court has declared that the right of a parent to make decisions for their children is a fundamental right under the United States Constitution. Troxel v Granville, 530 U.S. 57.

So, if it is a stepparent versus a grandparent, sibling or other non-parent who has custody, the stepparent might have a shot at custody but a stepparent will never win custody over an actual parent.

“Stepparents are treated somewhat preferentially in relation to other persons who are not the natural parent of the child in that they may seek an allocation of parental responsibilities under certain circumstances if the parent to whom he or she was married dies or becomes disabled. ” Sharpe v. Westmoreland, 2020 IL 124863

Stepparent Visitation Right In Illinois

Stepparents have legal rights under Illinois statutes. A stepparent can ask for visitation with a stepchild in Illinois.

“A petition for visitation may be filed under this Section only if there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical, or emotional harm” 750 ILCS 5/602.9

But, for the same reasons as listed above, a stepparent will always lose in a battle against a parent regarding decisions as to whom a child will spend time with.  Per both the U.S. Supreme Court and the Illinois Supreme Court.

[A] fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents — not judges — should be the ones to decide with whom their children will and will not associate.” Wickham v. Byrne, 769 NE 2d 1 – Ill: Supreme Court 2002

Boyfriends, Girlfriends And Children In An Illinois Divorce?

Stepparents are people who are married to parents.  The Illinois laws that allow for stepparent exposure and visitation specifically define stepparents as being married.

So, if you want to limit exposure or visitation by a boyfriend or girlfriend of your ex, tell the judge that the law does not accommodate non-married “stepparents.”

In today’s reality, most judges won’t consider a committed relationship between a boyfriend and girlfriend to be anything but an additional person whose presence is in the best interests of the child

Civil unions (rare nowadays) may not be marriages but they do create a step-parent relationship. “[A] civilly united partner is a “step-parent” as defined in the Dissolution Act.” Sharpe v. Westmoreland, 2020 IL 124863

If you are a stepparent, your children now have stepparents or there is a stepparent on the horizon and you need advice, please contact my Chicago, Illinois divorce law firm to speak with an experienced Chicago divorce lawyer about what rights you have and what rights the stepparent has.

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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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