In re Parentage of Scarlett Z.-D.

Illinois Official Reports

Supreme Court

In re Parentage of Scarlett Z.-D., 2015 IL 117904

Caption in Supreme In re PARENTAGE OF SCARLETT Z.-D., a Minor (James R.D.,

Court: Appellee, v. Maria Z., Appellant).

Docket No. 117904

Filed March 19, 2015

Decision Under Appeal from the Appellate Court for the Second District; heard in that

Review court on appeal from the Circuit Court of Du Page County, the Hon.

Timothy McJoynt, Judge, presiding.

Judgment Appellate court judgment affirmed in part and reversed in part.

Circuit court judgment affirmed.

Counsel on David W. Schopp, of Aurora, for appellant.

Appeal

Camilla B. Taylor, of Lambda Legal Defense & Education Fund, Inc.,

of Chicago, for appellee.

Robert F. Harris, Kass A. Plain and Mary Brigid Hayes, of the Office

of the Cook County Public Guardian, of Chicago, for amicus curiae

Cook County Public Guardian.

Winston & Strawn LLP (Samuel S. Park, of Chicago, and K. Joon Oh,

of San Francisco, California), and John Knight, of Roger Baldwin

Foundation of ACLU, Inc., of Chicago, for amici curiae American

Civil Liberties Union et al.

Hugh S. Balsam and Andy J. Miller, of Locke Lord LLP, of Chicago,

for amici curiae Family Institute at Northwestern University et al.

Justices JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Thomas, Kilbride, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

OPINION

¶1 Scarlett Z.-D. is the adopted daughter of respondent, Maria Z. Petitioner, James R.D. (Jim),

filed a petition in the circuit court of Du Page County seeking a declaration of parentage,

custody, visitation, and child support regarding Scarlett. Prior to trial, the circuit court

dismissed Jim’s claims brought under common law contract theories and, following trial,

denied his claims brought under functional parent theories. A divided panel of the appellate

court (2014 IL App (2d) 120266-B) ultimately affirmed the rejection of Jim’s common law

contract and functional parent theories, but vacated in part the denial of Jim’s claims and

remanded for further fact finding with reference to the doctrine of equitable adoption as

recognized in DeHart v. DeHart, 2013 IL 114137.

¶2 This court allowed Maria’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,

2010). We hold that the doctrine of equitable adoption as recognized in DeHart does not apply

to child custody proceedings. Accordingly, we now affirm the judgment of the appellate court

in part and reverse in part.

¶3 I. BACKGROUND

¶4 In 1999, Maria and Jim met, fell in love, and began living together as a couple in Elmhurst.

In 2000 or 2001, they became engaged to be married. Maria was born in Slovakia, immigrated

to the United States, and frequently returned to Slovakia to visit family. During one such visit

in early 2003, Maria met Scarlett, a 3½-year-old orphan. Born in June 1999, Scarlett was

placed in an orphanage when her biological mother lost her parental rights.1

¶5 Through several telephone conversations, Maria and Jim decided to bring Scarlett into

their lives. Under Slovakian law, Jim was not permitted to adopt Scarlett because he was

neither a Slovakian national nor married to Maria. Accordingly, Maria and Jim decided that

Maria would adopt Scarlett. Maria commenced the year-long adoption process and lived in

Slovakia during that time. Jim financially supported the process, traveled there approximately

five times, and participated in a psychological evaluation. In 2004, Maria adopted Scarlett

under Slovakian law, and the three of them returned to the United States.

¶6 The circuit court found that Maria, Jim, and Scarlett lived together “as an intact family unit

as if they were bound legally.” Maria and Jim gave Scarlett the hyphenated form of their last

names. Jim was the “father figure” to Scarlett, who referred to Jim as “daddy.” Jim’s name

appears in Scarlett’s school records as Scarlett’s father. Jim paid all family expenses and

provided economic support for Scarlett. In June 2006, he established a $500,000 irrevocable

1

The custody evaluation report indicates that both of Scarlett’s biological parents had been drug

addicts. The record does not indicate any contact between Scarlett and her biological father.

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trust for Scarlett. The court found that Scarlett “learned English and clearly came a long way

over this time period under the watchful eyes and good parenting from both Jim and Maria.”

¶7 However, Maria and Jim never married. Jim did not acquire legal recognition as Scarlett’s

father by domesticating the Slovakian adoption in Illinois, by seeking to adopt Scarlett

pursuant to Illinois law, or by other statutory means.

¶8 The relationship between Maria and Jim deteriorated. In August 2008, Maria moved out of

Jim’s home, taking Scarlett. Later that month, Jim filed a petition for declaration of parental

rights. In May 2009, Jim filed his second amended petition, which framed the instant

proceedings. In the six-count petition, Jim sought: a declaration of parentage and an order

granting him and Maria joint legal and physical custody of Scarlett, or alternatively, granting

him primary custody with reasonable visitation for Maria (count I), and an equitable division

of child support (count II). Jim also alleged several common law contract claims. Jim alleged

that Maria breached their oral agreement to be equal parents to Scarlett (count III); he was

therefore entitled to relief based on promissory estoppel (count IV); alternatively, in the

absence of an express agreement, Maria breached their implied contract in fact (count V); or a

contract implied at law (count VI).

¶9 Maria filed motions to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-615, 2-619 (West 2012)), contending that Jim lacked standing to

commence a custody proceeding. The circuit court ultimately dismissed Jim’s common law

claims (counts III through VI) pursuant to section 2-615.

¶ 10 The case proceeded to trial. In count I, Jim alleged that he was Scarlett’s de facto,

equitable, and psychological parent, and that he stood in loco parentis to Scarlett. Maria filed a

response, in which she raised the affirmative defense of standing. At the close of the trial, the

court concluded that Jim lacked standing and was not subject to paying child support.

Accordingly, the court denied relief under counts I and II.

¶ 11 On appeal, the appellate court initially affirmed. In re Parentage of Scarlett Z.-D., 2012 IL

App (2d) 120266. Jim filed a petition for leave to appeal with this court. We denied the

petition, but entered a supervisory order directing the appellate court to vacate its decision and

reconsider the appeal in light of DeHart v. DeHart, 2013 IL 114137, to determine if a different

result was warranted. In re Parentage of Scarlett Z.-D., No. 115000 (Ill. May 29, 2013)

(supervisory order).

¶ 12 On reconsideration, a divided panel of the appellate court reversed the circuit court’s denial

of relief under counts I and II. The appellate court rejected Jim’s assertion of standing based on

various functional parent theories. 2014 IL App (2d) 120266-B, ¶¶ 33-50. However, the

appellate court held that the equitable adoption doctrine as recognized in DeHart “might

present a potentially viable theory of standing for Jim.” Id. ¶ 64. The appellate court remanded

the case to the circuit court with directions that the court make factual findings, with reference

to DeHart, as to whether Jim could establish standing. Id. ¶¶ 65-68. Also, the appellate court

again affirmed the dismissal of Jim’s common law contract claims. Id. ¶¶ 74-76.2

2

The partially dissenting justice would have vacated the circuit court’s entire judgment and would

have remanded the case for further proceedings regarding the issue of standing on all counts. Id.

¶¶ 81-94 (McLaren, J., specially concurring in part and dissenting in part).

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¶ 13 Maria now appeals to this court. We granted the Family Institute at Northwestern

University, Chicago Appleseed Fund for Justice, Family Equality Council and National

Association of Social Workers, as well as the American Civil Liberties Union of Illinois and

the National Center for Lesbian Rights, leave to submit amici curiae briefs in support of Jim.

We also granted the Cook County public guardian leave to submit an amicus curiae brief. Ill.

S. Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the

context of our analysis.

¶ 14 II. ANALYSIS

¶ 15 Before this court, Maria assigns error to the appellate court’s holding that the equitable

adoption doctrine as recognized in DeHart might provide Jim with standing to seek custody of

Scarlett. On cross-appeal, Jim assigns error to the appellate court’s rejection of his claims. We

address each of their respective contentions where appropriate in our analysis.

¶ 16 A. Forfeiture of Objections to Standing

¶ 17 Jim first contends that Maria forfeited the opportunity to contest Jim’s standing. 3 Maria

filed a motion to dismiss Jim’s petition pursuant to section 2-615 of the Code of Civil

Procedure (735 ILCS 5/2-615 (West 2012)). She alleged that Jim’s petition failed to state a

cause of action because it did not address the threshold question of standing under either the

Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 (West

2012)) or the Illinois Parentage Act of 1984 (750 ILCS 45/1 (West 2012)). Jim filed a

response, arguing that Maria had forfeited her standing argument because a section 2-615

motion was not the proper vehicle to raise the issue of standing.

¶ 18 The circuit court allowed Maria to file a memorandum in support of her section 2-615

motion if she so desired. Within the time allowed for that memorandum, Maria filed a section

2-619 motion to dismiss (735 ILCS 5/2-619 (West 2012)), asserting lack of standing under the

Marriage Act. Jim moved to dismiss Maria’s motion. He argued that Maria had forfeited the

issue of standing by improperly raising it in a section 2-615 motion to dismiss. The circuit

court found that Maria did not forfeit the issue of standing, and offered Jim additional time to

submit affidavits and file a response to Maria’s section 2-619 motion. Jim accepted the offer.

The circuit court ultimately denied Maria’s section 2-619 motion to dismiss regarding all

counts of Jim’s complaint. The court granted Maria’s section 2-615 motion to dismiss

regarding counts III through VI, but denied the motion regarding counts I and II.

¶ 19 Repeating his argument before the appellate court, Jim argues that Maria forfeited the issue

of his standing by failing to file a “timely” section 2-619 motion to dismiss. The appellate court

correctly rejected this contention. 2014 IL App (2d) 120266-B, ¶¶ 22-24.

¶ 20 A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

(West 2012)) tests the legal sufficiency of the plaintiff’s claim, while a motion to dismiss under

3

The appellate court used the term “waiver” because the parties did so. However, the court correctly

recognized the distinction between waiver and forfeiture: “ ‘[w]hile waiver is the voluntary

relinquishment of a known right, forfeiture is the failure to timely comply with procedural

requirements.’ ” 2014 IL App (2d) 120266-B, ¶ 22 n.3 (quoting Buenz v. Frontline Transportation Co.,

227 Ill. 2d 302, 320 n.2 (2008)).

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section 2-619 (735 ILCS 5/2-619 (West 2012)) admits the legal sufficiency of the plaintiff’s

claim, but asserts certain defects or defenses outside the pleading that defeat the claim. Patrick

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31; Wallace v. Smyth, 203 Ill. 2d

441, 447 (2002). A section 2-619 motion to dismiss must be brought “within the time for

pleading.” 735 ILCS 5/2-619(a) (West 2012). Lack of standing is an affirmative matter that is

properly raised under section 2-619. Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999).

Specifically, lack of standing under section 601(b)(2) of the Marriage Act is an affirmative

defense that is forfeited unless raised in a motion to dismiss during the time of the pleadings.

In re Custody of K.P.L., 304 Ill. App. 3d 481, 486 (1999) (collecting cases).

¶ 21 We reject Jim’s contention. Maria’s section 2-619 motion was not “untimely” because she

filed it well within the time for pleading and prior to evidentiary hearings. In any event, Maria

based both of her motions to dismiss on Jim’s lack of standing: either Jim’s failure to plead

standing (section 2-615), or Maria’s affirmative defense of Jim’s lack of standing (section

2-619). Thus, Jim does not, and cannot, argue that he was prejudiced by Maria’s

less-than-meticulous pleading. See Wallace, 203 Ill. 2d at 447; Illinois Graphics Co. v.

Nickum, 159 Ill. 2d 469, 483-88 (1994). Consequently, we uphold the appellate court’s

rejection of this argument.

¶ 22 B. Equitable Estoppel

¶ 23 In opposing Maria’s motions to dismiss, Jim contended that Maria should be equitably

estopped from challenging his standing to seek custody, visitation, and an allocation of child

support. The circuit court rejected this contention, as did the appellate court. 2014 IL App (2d)

120266-B, ¶¶ 25-32.

¶ 24 The general rule is where A, by his or her statements and conduct, leads B to do something

that B would not have done but for such statements and conduct, A will not be allowed to deny

his or her words or acts to the damage of B. Equitable estoppel may be defined as the effect of

A’s conduct whereby A is barred from asserting rights that might otherwise have existed

against B who, in good faith, relied upon such conduct and has been thereby led to change his

or her position for the worse. Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313

(2001).

¶ 25 To establish equitable estoppel, the party claiming estoppel must demonstrate that: (1) the

other party misrepresented or concealed material facts; (2) the other party knew at the time the

representations were made that the representations were untrue; (3) the party claiming estoppel

did not know that the representations were untrue when they were made and when they were

acted upon; (4) the other party intended or reasonably expected the representations to be acted

upon by the party claiming estoppel or by the public generally; (5) the party claiming estoppel

reasonably relied upon the representations in good faith to his or her detriment; and (6) the

party claiming estoppel has been prejudiced by his or her reliance on the representations. Parks

v. Kownacki, 193 Ill. 2d 164, 180 (2000). The representation need not be fraudulent in the strict

legal sense or done with an intent to mislead or deceive. Although fraud is an essential element,

it is sufficient that a fraudulent or unjust effect results from allowing another person to raise a

claim inconsistent with his or her former declarations. Geddes, 196 Ill. 2d at 314. The test is

whether, considering all the circumstances, conscience and the duty of honest dealing should

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deny one the right to repudiate the consequences of his or her representations or conduct. Ceres

Illinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d 133, 148 (1986).

¶ 26 The party claiming estoppel has the burden of proving it by clear and convincing evidence.

The availability of equitable estoppel depends on the circumstances of each case. Geddes, 196

Ill. 2d at 314. The circuit court’s decision regarding equitable estoppel will not be disturbed on

review unless it is against the manifest weight of the evidence, or will be reviewed de novo if it

is based on a legal conclusion. Morgan Place of Chicago v. City of Chicago, 2012 IL App (1st)

091240, ¶ 33.

¶ 27 Applying these principles to the instant case, we conclude that the appellate court correctly

rejected this contention for several reasons. Initially, there was no misrepresentation. As the

appellate court observed, the record contains no evidence that Maria misrepresented to Jim that

he was Scarlett’s biological or adoptive father. Jim testified that, through 2006, he had initiated

discussions with Maria about adoption every three to six months. Maria’s response was always

positive, but she did not act on his requests. Thus, Jim was aware at all times that he was not

Scarlett’s biological father, that the Slovakian adoption did not pertain to him, and that

domestication of the Slovakian adoption or formal adoption in Illinois would be necessary as

to him. Also, Jim testified that he and Maria intended that both of them would pursue adoption

of Scarlett in this country. However, the court correctly stated that “a promise to do something

in the future does not constitute a factual misrepresentation.” 2014 IL App (2d) 120266-B,

¶ 28; see Sinclair v. Sullivan Chevrolet Co., 31 Ill. 2d 507, 510 (1964) (stating that a

misrepresentation, to be actionable, “must generally relate to an existing or past event, not to a

promise or prognostication concerning a future happening”).

¶ 28 Assigning error to the appellate court, Jim attempts to base his equitable estoppel claim on

then-existing circumstances rather than a future happening. Jim argues that Maria should be

estopped from challenging his standing based on “her consistent course of conduct and express

representations to Jim, Scarlett, and the outside world for years, on which both Scarlett and Jim

reasonably relied, fostering a cherished parent-child bond that cannot be severed without

causing psychological harm to the child and great injustice to Jim.” According to Jim, “Maria’s

representation was her promise to protect and respect forever Jim’s role in Scarlett’s life as her

‘Daddy,’ and her years of conduct consistent with that promise, on which both Scarlett and Jim

detrimentally relied.”

¶ 29 We cannot accept Jim’s argument. Maria’s challenge of Jim’s standing was in no way

inconsistent with Jim’s characterization of the circumstances. As the appellate court reasoned,

Maria’s conduct in treating Jim like Scarlett’s father occurred when Maria and Jim were

engaged to be married. Jim’s relationship with Scarlett was contingent upon his relationship

with Maria, Scarlett’s only legal parent. For example, when asked what, if anything, he had

done to secure United States citizenship for Scarlett, Jim testified that he, himself, could not do

anything. He stated: “All I can do is work through Maria.” Thus, when Maria and Jim

terminated their relationship, Maria’s assertion that Jim was not Scarlett’s legal parent was not

inconsistent with, or a repudiation of, her prior behavior. 2014 IL App (2d) 120266-B, ¶ 29.

Again, there was no misrepresentation of a material fact.

¶ 30 Further, Jim could not have reasonably relied on his characterization of Maria’s conduct.

During their engagement, any words or conduct by Maria to encourage a relationship between

Scarlett and Jim were gratuitous on Maria’s part. A promise founded upon considerations of

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affection or gratitude is a mere beneficence and cannot be the foundation for a legal action. See

In re Marriage of Engelkens, 354 Ill. App. 3d 790, 798 (2004); Lesnik v. Estate of Lesnik, 82

Ill. App. 3d 1102, 1107 (1980); 2 Joseph M. Perillo & Helen Hadjiyannakis Bender, Corbin on

Contracts § 5.18 (rev. ed. 1995).

¶ 31 Moreover, Maria’s conduct did not result in a fraudulent or unjust effect. Maria is

Scarlett’s legal mother. Parents have the fundamental right to make decisions regarding the

care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66 (2000)

(plurality opinion). “Encompassed within the well-established fundamental right of parents to

raise their children is the right to determine with whom their children should associate.” Lulay

v. Lulay, 193 Ill. 2d 455, 473-74 (2000). Once Maria and Jim terminated their engagement, it

was not unjust for Maria to refuse to allow custody or visitation between her daughter and her

ex-fiancé.4 We hold that Maria was not equitably estopped from challenging Jim’s standing to

seek custody, visitation, and allocation of child support.

¶ 32 C. Functional Parent Theories

¶ 33 Jim next contends that the appellate court erred in holding that he may not state an

equitable claim for custody, visitation, and support based on various functional parent theories.

2014 IL App (2d) 120266-B, ¶¶ 33-50. Jim argues that the circuit court found facts

demonstrating his parent-child relationship with Scarlett. According to Jim, these facts permit

him “to move forward with a claim in equity.” If necessary, we review the circuit court’s

factual findings under a manifest weight of the evidence standard; however, we apply those

facts de novo to the question of whether Jim has standing to pursue his custody petition. In re

Marriage of Baumgartner, 237 Ill. 2d 468, 486-87 (2010); In re Guardianship of K.R.J., 405

Ill. App. 3d 527, 535-36 (2010).

¶ 34 At the outset, Jim correctly concedes that he lacks statutory standing. Section 601(b)(2) of

the Marriage Act provides that a nonparent may commence a custody proceeding, “but only if

[the child] is not in the physical custody of one of [the child’s] parents.” 750 ILCS 5/601(b)(2)

(West 2012). This section is a standing requirement for nonparents. “That is, for a nonparent to

have standing to seek custody under the Marriage Act, the nonparent must first show that the

child is not in the physical custody of one of his parents.” In re R.L.S., 218 Ill. 2d 428, 435

(2006). Further, “when used in this sense, ‘standing’ does not have the traditional meaning of a

requirement that a litigant has a justiciable interest in a controversy. Rather, it merely refers to

a threshold issue that must be determined before the court may proceed to a ‘best interests’

determination.” Id. at 435 n.2; see In re A.W.J., 197 Ill. 2d 492, 496-97 (2001).

¶ 35 The standing requirement of section 601(b)(2) of the Marriage Act safeguards the superior

right of parents to the care and custody of their children. See A.W.J., 197 Ill. 2d at 497. Indeed,

4

Jim continues to rely on In re Marriage of Schlam, 271 Ill. App. 3d 788 (1995), in support of his

equitable estoppel argument. However, Schlam is distinguishable. In that case, a husband and wife

divorced and entered into a joint parenting agreement. The wife was equitably estopped from

challenging the joint parenting agreement, in which she made representations to the court. In the case at

bar, there is no marriage, divorce, or joint parenting agreement. Maria made no representations to the

court regarding a father-daughter relationship. 2014 IL App (2d) 120266-B, ¶¶ 31-32 (distinguishing

Schlam). The application of equitable estoppel in Schlam had nothing to do with either preventing a

challenge to standing or a misrepresentation to the nonbiological father.

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the superior right doctrine is of constitutional magnitude. The due process clause of the

fourteenth amendment protects the fundamental right of parents to make decisions regarding

the care, custody, and control of their children without unwarranted state intrusion. Troxel v.

Granville, 530 U.S. 57, 65-66 (2000); accord R.L.S., 218 Ill. 2d at 438; Wickham v. Byrne, 199

Ill. 2d 309, 316-17 (2002).

¶ 36 The Marriage Act does not define the term “parent.” However, the Illinois Parentage Act of

1984 (750 ILCS 45/1 et seq. (West 2012)) provides a statutory mechanism for legally

establishing a parent-child relationship. In re N.C., 2014 IL 116532, ¶ 51. According to section

2 of the statute, a “parent and child relationship” means the legal relationship between a child

and his or her natural or adoptive parents, incident to which the law confers rights and

privileges, or imposes duties and obligations. 750 ILCS 45/2 (West 2012). Section 4(3)

provides that a parent and child relationship between a child and “an adoptive parent may be

established by proof of adoption.” 750 ILCS 45/4(3) (West 2012).5 Section 14(a)(1) expressly

directs the court to determine custody or visitation issues in accordance with the relevant

factors in the Marriage Act. 750 ILCS 45/14(a)(1) (West 2012). These factors include the

requirement of standing. See In re Marriage of Mancine, 2014 IL App (1st) 111138-B, ¶ 23; In

re Parentage of Unborn Child Brumfield, 284 Ill. App. 3d 950, 954 (1996).

¶ 37 Accordingly, in the case at bar, Maria alone has a statutory parent-child relationship with

Scarlett, as she is Scarlett’s adoptive parent. Maria’s Slovakian adoption of Scarlett was final.

Domesticating the Slovakian adoption decree in Illinois would not elevate or improve Maria’s

status as Scarlett’s legal mother. See Shelley B. Ballard, Intercountry Adoptions: Avoiding

Procedural Pitfalls and Common Problems, in Illinois Adoption Law § 10.14 (Ill. Inst. for

Cont. Legal Educ. 2011) (describing domestication of final foreign adoption as optional).

However, Jim lacks statutory recognition as Scarlett’s father. Accordingly, he is a statutory

nonparent. Further, Maria has always retained physical custody of Scarlett. Consequently, Jim

does not meet the standing requirement for nonparents provided by section 601(b)(2) of the

Marriage Act.

¶ 38 Before this court, Jim nonetheless asserts that he is Scarlett’s parent. Jim contends that he

“is not foreclosed from bringing a claim for custody, visitation, or support simply because he

lacks statutory standing.” Jim argues that he can state a claim in equity based on several

descriptions of “functional parent-child relationships.” He alleged in count I: “Specifically,

JIM is the de facto, equitable and psychological parent of, and stands in loco parentis to

SCARLETT.” In count II, Jim sought an allocation of child support so that he and Maria could

“plan financially and make the best possible decisions to ensure SCARLETT’s future.”

¶ 39 Jim invokes an area of family law that continues to be debated in legal literature and to

evolve in case law. As one scholar explains:

“Family law’s acknowledgment of the importance of adults who are not parents,

historically referred to as ‘third parties’ or ‘legal strangers’ to the child, has extended to

the point that today functioning in a parent-like role can lead to becoming a parent.

Although it remains clear that only parents possess the constitutional right to control

5

An adoptive parent may establish the parent-child relationship also by records established

pursuant to section 16 of the Vital Records Act (410 ILCS 535/16 (West 2012) (“Certificate of

adoption”)). 750 ILCS 45/4(3) (West 2012).

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their children’s upbringing, who counts as a parent has become increasingly complex.

*** Adults who formerly might have been considered a legal stranger to a child may

now be recognized by the law as having rights and obligations towards a child with

whom they have no biological or formal legal connection. The case law employs

various legal formulations to describe functional parents and differing tests to screen

out who qualifies as a functional parent. *** Modern family law’s ‘functional turn’ has

exploded the notion that children have only two ‘natural’ parents who must be their

sole caregivers, with the state as the only alternative in the absence of parents. This

functional approach to the family exemplifies family law’s ongoing efforts ‘to reflect

more accurately the reality of family life.’ ” Maya Manian, Functional Parenting and

Dysfunctional Abortion Policy: Reforming Parental Involvement Legislation, 50 Fam.

Ct. Rev. 241, 246-47 (2012).

Accord Pamela Laufer-Ukeles & Ayelet Blecher-Prigat, Between Function and Form:

Towards a Differentiated Model of Functional Parenthood, 20 Geo. Mason L. Rev. 419,

421-23 (2013); Jeffrey A. Parness, Federal Constitutional Childcare Interests and Superior

Parental Rights in Illinois, 33 N. Ill. U. L. Rev. 305, 309-10 (2013).

¶ 40 Courts and commentators have used several overlapping descriptions of functional parent,

as did Jim here. Common to the definitions of “psychological parent” or “de facto parent” is a

relationship with deep emotional bonds such that the child recognizes the person as a parent

from whom the child receives daily nurture and guidance, independent of the form of the legal

relationship. In re E.L.M.C., 100 P.3d 546, 559-60 (Colo. App. 2004); V.C. v. M.J.B., 748 A.2d

539, 550 (N.J. 2000). Whereas psychological or de facto parentage focuses primarily on the

existence of a psychological relationship between the nonparent and child, the doctrine of in

loco parentis focuses on whether the nonparent intentionally assumes parental status. A person

who stands in loco parentis to a child has put himself or herself in the place of a legal parent by

fully assuming all obligations incident to a parent-child relationship without going through the

necessary formalities of a legal adoption. The rights, duties, and liabilities of such a person are

the same as those of the legal parent. However, once the person alleged to be in loco parentis

no longer discharges all duties incident to the parental relationship, that person is no longer in

loco parentis and the parental relationship is terminated. In re Destiny S., 639 N.W.2d 400, 406

(Neb. 2002) (collecting cases). Some courts have conflated the psychological parent, de facto

parent, and in loco parentis doctrines and applied the four-prong test developed for de facto

parentage: (1) whether the legal parent consented to or fostered the relationship between the de

facto parent and the child; (2) whether the de facto parent lived with the child; (3) whether the

de facto parent assumed the obligations of parenthood by taking significant responsibility for

the child’s care, education, and development, including contributing toward the child’s

support, without expectation of financial compensation; and (4) whether a parent-child bond

was formed. In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995). These four

factors cover the three-factor test for determining an “equitable parent” (Atkinson v. Atkinson,

408 N.W.2d 516, 519 (Mich. Ct. App. 1987)). See Emmalee M. Miller, Note, Are You My

Mother? Missouri Denies Custodial Rights to Same-Sex Parent, 75 Mo. L. Rev. 1377, 1388-94

(2010); Jason C. Beekman, Same-Sex Marriage: Strengthening the Legal Shield or Sharpening

the Sword? The Impact of Legalizing Marriage on Child Custody/Visitation and Child Support

for Same-Sex Couples, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 215, 242-46 (2012);

Laufer-Ukeles & Blecher-Prigat, supra, at 422 n.9.

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¶ 41 In addition to courts and commentators, the American Law Institute (ALI) has also

contributed to this discussion. In 2002, ALI published its Principles of the Law of Family

Dissolution: Analysis and Recommendations (Principles). Where state courts generally use the

terms “psychological parent,” “de facto parent,” and “in loco parentis” interchangeably, the

Principles distinguish these terms and assign them different meanings. Principles of the Law of

Family Dissolution: Analysis and Recommendations § 2.03 (2002); see generally Beekman,

supra, at 247-49; Laufer-Ukeles & Blecher-Prigat, supra, at 449-51; Robin Fretwell Wilson,

Trusting Mothers: A Critique of the American Law Institute’s Treatment of De Facto Parents,

38 Hofstra L. Rev. 1103 (2010).

¶ 42 In response to this legal evolution, state legislatures are providing statutory remedies. In

fact, some legislatures have established parenthood gradations, such as with legal and

equitable parents, or recognized childcare interests, such as with parental responsibilities and

parenting time, in persons with neither biological nor adoptive ties. Parness, supra, at 310,

334-36. Some state courts, “while often sympathetic to nonbiological and nonadoptive parents,

have deferred to elected legislators in their own state’s ‘representative democracy.’ ” Id. at

310. Our appellate court has concluded that standing to petition for custody or visitation is a

complex issue that demands a comprehensive legislative solution. In re Marriage of Simmons,

355 Ill. App. 3d 942, 953-54 (2005); In re Visitation With C.B.L., 309 Ill. App. 3d 888, 894-95

(1999). We agree.

¶ 43 Even advocates of a “functional parent” theory acknowledge the competing policy issues.

For example, while observing that legal recognition of functional parents “generally has

become more widely employed,” and exhorting the recognition of “diverse family forms,” one

scholar acknowledges that:

“functional definitions of parentage and recognition of third-party rights remain hotly

contested in a number of jurisdictions. There are some who resist granting legal rights

to functional parents and other third parties, particularly in the context of same sex

families. Even scholars who favor more expansive definitions of parentage

acknowledge that granting legal rights to third parties has costs to both parents and

children.” Manian, supra, at 248.

Further, the ALI’s Principles, which recognize functional parenthood, also acknowledge the

competing public policy issues:

“Giving rights to de facto parents may serve to weaken the commitment society has to

legal parents, on which the ideology of responsible parenting is based; yet disregarding

their connection to a child at the time of family dissolution ignores child-parent

relationships that may be fundamental to the child’s sense of stability.

***

The law’s challenge is to identify an approach applicable to all cases that allows

continued contacts by de facto parents whose participation in the child’s life is

critically important to the child’s welfare and recognizes the importance that some

families place on extended family, and yet is consistent with the autonomy of parents

that is essential to their meaningful exercise of responsibility.” Principles of the Law of

Family Dissolution: Analysis and Recommendations, Introduction, at 5-6 (2002).

¶ 44 Our description of the several overlapping concepts of functional parenthood, which

merely scratches the surface of the issue, reflects the extent of the many possible public policy

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issues underlying Jim’s one-sentence allegation. The relevant policy considerations do not

invariably point in one direction, and there is vehement disagreement over the validity of their

underlying assumptions. The very difficulty of these policy considerations, and the

legislature’s superior institutional competence to pursue this debate, suggest that legislative

and not judicial solutions are preferable. Patsy v. Board of Regents of the State of Florida, 457

U.S. 496, 513 (1982); see Hewitt v. Hewitt, 77 Ill. 2d 49, 61 (1979).

¶ 45 In sum, Jim correctly concedes that he lacks statutory standing. Further, he cannot petition

for custody, visitation, and support as Scarlett’s “parent” because Illinois does not recognize

functional parent theories.

¶ 46 D. Applicability of Equitable Adoption Doctrine

¶ 47 Although the appellate court rejected Jim’s functional parent theories to confer standing,

the court held on reconsideration that the equitable adoption doctrine as recognized in DeHart

v. DeHart, 2013 IL 114137, might confer standing on Jim to seek custody, visitation, and

support of Scarlett. 2014 IL App (2d) 120266-B, ¶ 64. Maria assigns error to this holding.

¶ 48 Essentially, the doctrine of equitable adoption allows a person who was accepted and

treated as a natural or adopted child, and as to whom adoption typically was promised or

contemplated but never performed, to share in the inheritance of the foster or stepparent. Estate

of Ford v. Ford, 82 P.3d 747, 750 (Cal. 2004); see 2 Am. Jur. 2d Adoption § 62 (2004).

¶ 49 DeHart was a model case for equitable adoption. That case involved an action against the

executor of an estate to contest the decedent’s will. The plaintiff, James DeHart, born in 1944,

was held out to be the son of decedent, Donald DeHart, for James’s entire life. Donald married

James’s birth mother when James was approximately two years old. She and Donald agreed

that he would adopt James. This agreement was kept secret for the good of the family. Donald

hired an attorney, received a purported birth certificate that named him as James’s father, and

believed that the adoption had been formalized and was legal. Throughout their lifetimes, both

Donald and James used the purported birth certificate to conduct the affairs of life. However, in

2000, during the process of applying for a passport, James, then 56 years old, obtained his true

birth certificate and first learned that he was not Donald’s biological son. By then, James’s

mother was suffering from early-onset dementia and died in 2001. Even after this

confrontation and the death of James’s mother, Donald continued to hold out James as his son

and executed a will leaving him an inheritance. However, the record contained no legal

documentation of an adoption. DeHart, 2013 IL 114137, ¶¶ 3-7. Four years later, Donald

remarried at age 83. His new wife, the defendant, was approximately 54 years old. The

defendant allegedly exerted undue influence on Donald when he was not of sound mind. About

one year later, Donald executed a will in which he stated that he had no children and

bequeathed nothing to James. Id. ¶¶ 8-9.

¶ 50 When Donald died, the defendant was the executor of his estate, and she filed the second

will in the circuit court. James contested the will in a complaint alleging testator incapacity,

undue influence, fraudulent inducement, intentional interference with testamentary

expectancy, contract for adoption, and equitable adoption. Id. ¶¶ 10-12. The circuit court

granted the defendant’s motion to dismiss James’s entire complaint for failure to state a cause

of action. The appellate court ultimately reversed the dismissal. Id. ¶¶ 13-14. This court

affirmed the judgment of the appellate court. Id. ¶ 76.

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¶ 51 Analyzing James’s equitable adoption claim, this court concluded that “in Illinois an

equitable adoption theory should be recognized under the right circumstances.” Id. ¶ 58.

Adopting the California Supreme Court’s holding in Ford, we held that “a plaintiff bringing an

equitable adoption claim must prove an intent to adopt along the lines described in Ford and,

additionally, must show that the decedent acted consistently with that intent by forming with

the plaintiff a close and enduring familial relationship.” Id. ¶ 59.

¶ 52 We agree with Maria that the doctrine of equitable adoption, as recognized in DeHart, is a

probate concept to determine inheritance and does not apply to proceedings for parentage,

custody, and visitation. Certainly, the equitable adoption doctrine is “one example of the

functional approach” in that it “looks beyond legal status and into the actual relationship that

the individual shared with the decedent.” Michael J. Higdon, When Informal Adoption Meets

Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 Wake

Forest L. Rev. 223, 255-56 (2008). To that extent, it is not unlike the functional parent theories

earlier rejected. However, the very definition of equitable adoption indicates its limited

purpose. It is “a limited remedial doctrine devised by courts using their equitable powers” to

permit such a child “to inherit by intestate succession from the child’s putative equitably

adopting parent(s).” Irene D. Johnson, A Suggested Solution to the Problem of Intestate

Succession in Nontraditional Family Arrangements: Taking the “Adoption” (and the Inequity)

Out of the Doctrine of “Equitable Adoption”, 54 St. Louis U. L.J. 271, 272 (2009). The

doctrine is employed “[t]o correct the injustice that would result were the intestacy laws

woodenly applied.” Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who

Should Get What and Why?, 37 Vand. L. Rev. 711, 767 (1984).

¶ 53 Since the doctrine of equitable adoption is merely an equitable remedy, “it is not intended

or applied to create the legal relationship of parent and child, with all the legal consequences of

such relationship, nor is it meant to create a legal adoption.” Tracy Bateman Farrell, Modern

Status of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R.5th 205, § 2(a), at

231 (2004); accord 2 Am. Jur. 2d Adoption § 63, at 784 (2004); Titchenal v. Dexter, 693 A.2d

682, 688 (Vt. 1997) (stating that equitable adoption does not alter the status of parties, but

merely permits inheritance). Courts specifically have not applied the doctrine to give an

equitably adoptive parent the right to custody or visitation of the equitably adopted child.

Farrell, supra, at 231, 282-83 (collecting cases).

¶ 54 For example, DeHart did not involve a child custody proceeding, but rather a will contest.

We explained the limited nature of our holding:

“only in those cases where there is sufficient, objective evidence of an intent to adopt

(or fraudulently or mistakenly holding out as a natural child on a continual basis),

supported by a close enduring familial relationship, will an equitable adoption be

recognized. The narrow nature of our holding forecloses claims against the estate of

any foster parent or stepparent who merely treats a foster or stepchild lovingly and on

an equal basis with his or her natural or legally adopted children.” DeHart, 2013 IL

114137, ¶ 62.

Further, we expressly agreed with the Ford court’s view of the doctrine. Ford involved a

probate proceeding and defined the equitable adoption doctrine as a probate concept. Ford, 82

P.3d at 749-50. We hold that the doctrine of equitable adoption as recognized in DeHart is

limited to the context of inheritance, and does not apply to child custody.

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¶ 55 We also observe that, after citing many cases, Jim argues that regardless of whether the

doctrine is labeled “equitable adoption, equitable parent, de facto parent, in loco parentis, or

simply as derived from general principles of equity—these cases confirm that courts continue

to have plenary authority in equity in matters affecting child custody, visitation, and support,

irrespective of the separate authority provided by statute.” Jim cited these cases before the

appellate court, which adequately and correctly distinguished them. 2014 IL App (2d)

120266-B, ¶¶ 45-48. Lastly, Jim and supporting amici cite to many cases that recognize the

various functional parent theories. However, decisions from our sister state courts are not

binding on the courts of this state. Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d

478, 489 (1989). Further, they are not persuasive because they do not reflect Illinois law.

¶ 56 E. Constitutional Arguments

¶ 57 Before this court, Jim argues that the denial of his claims “would violate [his] fundamental

right as a parent. The due process guarantee of the state and federal constitutions protects

relationships between children and their equitable parents as they do other parent-child

relationships.” Jim further argues that denial of his claims based solely on a lack of statutory

standing “also would result in infringement on both Scarlett’s and Jim’s constitutionally

protected rights to familial association and integrity,” and also deny Scarlett equal protection.

Jim also argues that granting him custody or visitation regarding Scarlett would actually

respect “Maria’s express agreement with Jim and her encouragement of Scarlett’s

understanding of Jim as her parent.” The issue of whether an individual’s constitutional rights

have been violated is reviewed de novo. In re A.W., 231 Ill. 2d 92, 106 (2008).

¶ 58 These constitutional arguments beg the question of whether Jim is a “parent” in the first

place. Again, Jim concedes that he is a statutory nonparent. We have concluded that Maria

made no representations to Jim that would estop her from challenging Jim’s assertion of

functional parenthood, and that Illinois does not recognize the functional parent doctrine. Jim

cannot be denied due process by the denial of claims premised on a theory that Illinois does not

recognize.

¶ 59 Further, Jim and Maria do not begin on equal footing regarding the care, custody, and

control of Scarlett. As a fit custodial parent, Maria has the fundamental constitutional right to

determine with whom Scarlett should associate. Lulay, 193 Ill. 2d at 473-74. She enjoys the

presumption that her decisions to deny or limit visitation are in Scarlett’s best interests.

Wickham, 199 Ill. 2d at 318. The decision whether Jim’s sought-after relationship with Scarlett

would be in her best interests is for Maria to make in the first instance. Id. at 320 (quoting

Troxel, 530 U.S. at 70). Of course, these constitutional rights are in no way lessened by Maria

being a single parent. Id. at 318.

¶ 60 Regarding constitutional claims brought on Scarlett’s behalf, since Jim was not Scarlett’s

legal parent or guardian, he is not within the class aggrieved by the alleged unconstitutionality.

See In re M.I., 2013 IL 113776, ¶ 32; City of Chicago v. Lawrence, 42 Ill. 2d 461, 464-65

(1969). Thus, Jim may not assert Scarlett’s constitutional rights on her behalf. See In re

Marriage of Nienhouse, 355 Ill. App. 3d 146, 153 (2004). We affirm that portion of the

appellate court’s judgment that upheld the trial court’s denial of relief under counts I and II of

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Jim’s complaint based on lack of standing.6

¶ 61 F. Contract Claims

¶ 62 Jim raised several contract claims in counts III through VI of his petition. The circuit court

granted Maria’s section 2-615 motion to dismiss, which the appellate court upheld. 2014 IL

App (2d) 120266-B, ¶¶ 74-76. Before this court, Jim assigns error to the dismissal. Our review

is de novo. Patrick Engineering, 2012 IL 113148, ¶ 31.

¶ 63 In count III, Jim alleged a cause of action for breach of an oral contract. See Mannion v.

Stallings & Co., 204 Ill. App. 3d 179, 186 (1990) (stating elements). In count IV, Jim alleged a

cause of action for promissory estoppel. See Newton Tractor Sales, Inc. v. Kubota Tractor

Corp., 233 Ill. 2d 46, 51-52 (2009) (discussing elements). In counts V and VI, Jim alleged

causes of action for a contract implied in fact and a contract implied at law. See Century 21

Castles by King, Ltd. v. First National Bank of Western Springs, 170 Ill. App. 3d 544, 548

(1988) (stating respective elements). Before this court, Jim contends that he properly pled

these claims, none of which, according to Jim, “depend on any Illinois statute or a finding that

[he] is a legal parent.” We disagree.

¶ 64 This court has emphasized that “the character of the pleading should be determined from

its content, not its label. Accordingly, when analyzing a party’s request for relief, courts should

look to what the pleading contains, not what it is called.” In re Haley B., 2011 IL 110886, ¶ 67;

see Aebischer v. Zobrist, 56 Ill. App. 3d 151, 154 (1977) (stating that in determining legal

significance of plaintiff’s complaint court considers nature of relief sought rather than title of

pleading); South Side Trust & Savings Bank of Peoria v. South Side Trust & Savings Bank of

Peoria, 5 Ill. App. 3d 474, 479 (1972) (same).

¶ 65 Applying this principle to the instant case, we uphold the dismissal of counts III through

VI. Although they sounded in contract, the relief sought in each count was a determination of

custody, visitation, and child support. Accordingly, Jim’s lack of standing defeats counts III

through VI. To hold that these claims are valid would allow Jim to circumvent the statutory

standing requirements.

¶ 66 We note Jim’s reliance on In re Parentage of M.J., 203 Ill. 2d 526 (2003) and In re T.P.S.,

2012 IL App (5th) 120176. In M.J., this court held that the Illinois Parentage Act, which

pertains to artificial insemination (750 ILCS 40/1 et seq. (West 2012)), did not prohibit a

common law action for child support. M.J., 203 Ill. 2d at 540. In T.P.S., a panel of our appellate

court held that the Illinois Parentage Act did not prohibit breach of contract and promissory

estoppel claims. T.P.S., 2012 IL App (5th) 120176, ¶¶ 41, 61.

¶ 67 We agree with the appellate court that these cases are inapposite. Neither decision

recognized the equitable parent doctrine as a basis to assert standing to petition for custody,

visitation, and support. Indeed, T.P.S. expressly held that Illinois does not recognize the

equitable parent doctrine. Id. ¶¶ 64-65. Further, both decisions expressly limited their holdings

to cases involving children born by means of artificial insemination. M.J., 203 Ill. 2d at

541-42; T.P.S., 2012 IL App (5th) 120176, ¶ 23; see 2014 IL App (2d) 120266-B, ¶¶ 42-44.

6

Regarding count II, in which Jim seeks a determination of child support, nothing is preventing him

from giving money to Maria for Scarlett’s use.

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¶ 68 We are not unsympathetic to the position of Jim, or even that of Scarlett. However, as Jim

concedes, he lacks statutory standing to bring his claims for custody, visitation, and support.

Legal change in this complex area must be the product of a policy debate that is sensitive not

only to the evolving reality of “non-traditional” families and their needs, but also to parents’

fundamental liberty interest embodied in the superior rights doctrine. See, e.g., Debra H. v.

Janice R., 930 N.E.2d 184, 193-94 (N.Y. 2010); Titchenal, 693 A.2d at 689.

¶ 69 In sum, we affirm that part of the appellate court’s judgment which upheld the dismissal of

counts III through VI. We reverse that part of the appellate court’s judgment which reversed

the denial of relief under counts I and II.

¶ 70 III. CONCLUSION

¶ 71 For the foregoing reasons, the judgment of the appellate court is affirmed in part and

reversed in part, and the judgment of the circuit court of Du Page County is affirmed.

¶ 72 Appellate court judgment affirmed in part and reversed in part.

¶ 73 Circuit court judgment affirmed.

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