The Illinois Supreme Court Rules that the “Equitable Adoption” and “Functional Parent” Theories Cannot be Raised By a Nonparent Seeking Custody of a Child

In that case, Maria and Jim began living together in 1999 and shortly thereafter became engaged to be married. Maria then took a trip to Slovakia in 2003 to visit family, and she met Scarlett, who was a 3 ½-year-old orphan. Although the couple decided they wanted Scarlett to be part of their lives, Slovakian law prevented Jim from adopting her because he was neither a Slovakian national nor married to Maria. Thus, it was Maria who undertook a year-long process to adopt the child and she lived in Slovakia during that time. Jim, however, financially supported the process, traveled there five times, and participated in a psychological evaluation. In 2004, Maria adopted Scarlett under Slovakian law, and the three returned to Elmhurst, where Scarlett used the hyphenated form of Jim and Maria’s last names and referred to Jim as “daddy.” Jim’s name also appeared in Scarlett’s school records as her father, he paid all family expenses, and he established a $500,000 irrevocable trust for her. However, in 2008, Maria moved out of Jim’s home, taking Scarlett with her.

Jim filed an action in the Circuit Court of DuPage County, seeking a declaration of parentage, custody, visitation and child support as to Scarlett, based on several arguments, including a “functional parent” theory. Maria moved to dismiss Jim’s action on the basis that he lacked standing as a nonparent. The circuit court either dismissed or denied Jim’s claims, and that judgment was affirmed by the Appellate Court. Jim appealed to the Illinois Supreme Court, which used its supervisory authority to direct the Appellate Court to vacate its decision and reconsider the case in light of its then-recently-decided opinion in DeHart. A divided panel of the Appellate Court affirmed the rejection of Jim’s functional parent theories, but remanded the action for additional fact-finding to determine whether the doctrine of equitable adoption as first recognized in DeHart could apply. Maria then appealed to the Supreme Court.

The Illinois Supreme Court made it crystal-clear that the doctrine of equitable adoption, previously recognized in a will contest, does not apply to child custody proceedings. The Court clarified that the doctrine “is a probate concept to determine inheritance and does not apply to proceedings for parentage, custody and visitation.” As further support for this limitation, the Court underscored that this doctrine is merely an equitable remedy and “not intended or applied to create the legal relationship of parent and child, with all the legal consequences of such a relationship, nor is it meant to create a legal adoption.”

The Court also put the brakes on any further arguments based on a “functional parent” theory. Although Jim had conceded that he lacked statutory standing to commence a custody proceeding, he claimed he could gain standing in equity because he had a “functional parent-child relationship” with Scarlett, which had two aspects: a “psychological” or “de facto” parent relationship involving deep emotional bonds such that the child recognized him as a parent from whom she received daily nurture and guidance, as well as an in loco parentis relationship whereby Jim intentionally placed himself in a parental status. Although the Court engaged in a lengthy discussion regarding these novel theories, it concluded that because they involved fundamental matters of public policy, “legislative and not judicial solutions are preferable.”