stepparentagePublished in the Chicago Daily Law Bulletin
by Andrew Maloney

A civil union did not confer parenting rights to a woman whose partner died, a downstate appeals court has ruled.

The 5th District Appellate Court panel held that a person in a civil union does not qualify as a stepparent to their partner’s biological child under state law.

The appellate panel in Mount Vernon ruled in an April 11 opinion that Kris Fulkerson did not have standing to seek visitation and responsibilities for her deceased partner’s child, A.S., under the Marriage and Dissolution of Marriage Act.

Justice Judy L. Cates wrote that there is no case law directly on-point in Illinois, but that nonparents in similar situations typically don’t get the benefit of the doubt — even when they are particularly close to the child.

The child’s biological mother, Crystal Westmoreland, argued Kris did not have standing and that the court should give more weight to her own preferences.

“If we do not, then the substantial deference that must be accorded to parents as to who will associate with, care for and control their children would be undermined by expanding the narrow categories of nonparents entitled to seek visitation and parental responsibilities beyond the plain language of the statutory definition of stepparent set forth by the Marriage Act,” Cates wrote.

“To allow Kris standing to request visitation with A.S. under these circumstances essentially indicates that Kris’ rights under the Civil Union Act trump [m]other’s constitutional rights to make decisions for her own child, contrary to the express language and protections of the Marriage Act.”

The seven-page ruling was originally issued as an unpublished Rule 23 order on March 29, but the justices granted a motion to publish it as precedent-setting case law last week.

Illinois’ civil unions law took effect in June 2011, granting most of the rights associated with marriage to partners in a civil union.

Westmoreland shared parenting duties with her ex-husband, Matt Sharpe, after their divorce in January 2013.

The child’s legal residence was with Sharpe, her biological father, who entered a civil union with Fulkerson later that year.

Sharpe died in January 2017, and Westmoreland, the child’s biological mother, began denying Fulkerson visitation even though the child expressed interest in living with Fulkerson and her children.

Third Judicial Circuit Associate Judge Martin J. Mengarelli granted Fulkerson’s petition to intervene in the case in April 2017. But Westmoreland sought leave to stay the Madison County proceedings and file an interlocutory appeal, asking whether a partner to a civil union has standing for visitation and parental responsibilities as a stepparent under the Marriage and Dissolution of Marriage Act.

The 5th District panel wrote that the Illinois Religious Freedom Protection and Civil Union Act, signed into law by Gov. Patrick J. Quinn in January 2011 before the state recognized same-sex marriage, was generally intended to give couples who entered into the unions the same rights as married couples — but not necessarily with respect to children.

The Marriage Act also treats biological parents’ rights as superior to those of nonparents, Cates wrote. Under the law, a stepparent is someone who is or was married to a parent of the child in question.

“Given the interest the [s]tate has in protecting the rights of the natural parent and the stringent requirements for a party to seek nonparent visitation, we conclude that the legislature intended these provisions to be narrowly defined and applied,” Cates wrote. “The answer therefore is yes, stepparentage requires a legal marriage as opposed to a civil union.”

She added that the marriage law was amended as recently as 2018 and is still devoid of references to partners in civil unions with regard to stepparents.

The panel noted Fulkerson and Sharpe also “made a conscious choice to enter into a civil union as opposed to a marriage under the Marriage Act. At all times, they had the opportunity to avail themselves of the benefits the Marriage Act affords, but Kris and Father specifically chose not to do so.”

The panel cited the Illinois Supreme Court’s 2015 decision In re Scarlett Z.-D., where the high court ruled a man did not have custody rights over a child his ex-wife legally adopted, denying his claims he was a “functional parent.”

Standing for nonparents should be strictly construed, Cates wrote.

“In summary, the plain language of [S]ections 600(l) and 602.9(a)(3) of the Marriage Act defines a stepparent only as a person married to the child’s parent; consequently, only a person who was married to a child’s parent immediately prior to his or her death may be granted stepparent standing to petition for visitation and parental allocation of responsibilities,” the court concluded.

Justices Thomas M. Welch and Melissa A. Chapman concurred with the ruling.

Barbara L. Sherer, founder and principal at Sherer Law Offices in Edwardsville who represented Westmoreland, said this morning that “we whole-heartedly support the appellate court’s reasoning.” She noted the General Assembly has actively updated the state’s marriage laws for years.

“There were no changes to the definition of a stepparent for purposes of being able to obtain rights to a child that’s not their own,” she said. “That was never changed. A stepparent has always been defined, and defined recently, as someone married to the parent of a child, including immediately prior to a parent’s death.”

She said while opinions about marriage and parenting are still evolving, a biological parents’ rights are still paramount, and any carve out is “a decision that should be left to the Illinois legislature.”

John A. Knight, of the Roger Baldwin Foundation of the Illinois ACLU, represented Fulkerson, the intervenor in the case. He declined to comment.

The case is Matt Sharpe v. Crystal Westmoreland, 2019 IL App (5th) 170321.