The opinion
Rule 23 order filed 2019 IL App (5th) 170321
March 29, 2019.
Motion to publish granted NO. 5-17-0321
April 11, 2019.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
MATT SHARPE, ) Appeal from the
) Circuit Court of
Petitioner, ) Madison County.
)
v. ) No. 11-D-1210
)
CRYSTAL WESTMORELAND, )
)
Respondent-Appellant )
) Honorable
(Gregg Sharpe, Intervenor; Kris Fulkerson, ) Martin J. Mengarelli,
Intervenor-Appellee). ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Welch * and Chapman concurred in the judgment and opinion.
OPINION
¶1 This interlocutory appeal arises from an order of the circuit court of Madison County
issued on April 3, 2017, granting the petition for leave to intervene filed by Kris Fulkerson
(hereinafter Kris), intervenor-appellee. In granting the petition, the court determined that Kris
had standing as a stepparent under the Illinois Marriage and Dissolution of Marriage Act
(Marriage Act) (750 ILCS 5/101 et seq. (West 2016)) to seek visitation with and to seek parental
responsibilities of her deceased partner’s child, A.S. Crystal Westmoreland (hereinafter Mother),
respondent-appellant, the natural mother and surviving parent of the minor child, A.S., argued
*
Justice Goldenhersh was originally assigned to participate in this case. Justice Welch was
substituted on the panel subsequent to Justice Goldenhersh’s retirement and has read the briefs and
listened to the recording of oral argument.
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that Kris did not have standing because she is not a stepparent of A.S., given that she was never
legally married to A.S.’s father as required by the definition of stepparent under sections 600(l)
and 602.9(a)(3) of the Marriage Act (750 ILCS 5/600(l), 602.9(a)(3) (West 2016)). On April 20,
2017, Mother filed a motion to certify questions of law for interlocutory appeal and for stay of
the trial court proceedings, citing the conflict between the language of the Marriage Act and the
Illinois Religious Freedom Protection and Civil Union Act (Civil Union Act) (750 ILCS 75/1
et seq. (West 2016)) as to whether or not, by law, a person who was joined in a civil union with a
child’s parent can be classified as the child’s stepparent under the Marriage Act. On July 18,
2017, the circuit court entered an order staying the pending proceedings and granting Mother’s
motion to certify questions of law for interlocutory appeal. On August 17, 2017, Mother filed
with this court an application for leave to appeal pursuant to Illinois Supreme Court Rule 308
(eff. July 1, 2017), which we granted on September 27, 2017.
¶2 The marriage of Mother and Matt Sharpe (hereinafter Father) was dissolved in January of
2013. As part of the dissolution, Mother and Father agreed to a joint parenting agreement with
respect to their child A.S., who was then seven years old. While the parties shared equal
parenting time, A.S.’s legal residence was with Father. In November of 2013, Father entered into
a civil union with Kris. A.S. continued to reside with Father and now Kris and her three children.
Unfortunately, Father died on January 2, 2017. After Father’s death, Mother began to deny Kris
visitation with A.S. even though A.S. expressed a desire to live with Kris and her children. As a
result, Kris filed a petition seeking visitation rights and an allocation of parental responsibilities
with respect to A.S.
¶3 The issues before us, as certified for interlocutory appeal, are whether a partner to a civil
union as defined by the Civil Union Act has standing to request visitation with and parental
2
responsibilities of his or her deceased partner’s child as a stepparent under the Marriage Act.
Questions of law, such as the proper interpretation of statutes, are to be reviewed de novo. AT&T
Teleholdings, Inc. v. Department of Revenue, 2012 IL App (1st) 113053, ¶ 28.
¶4 The Civil Union Act provides persons entering into civil unions with the same
obligations, responsibilities, protections, and benefits afforded or recognized by the law of
Illinois to those persons entering into marriages. 750 ILCS 75/5 (West 2016). The Act’s passage
was in part a response to the need to afford protection to same sex couples prior to the
legalization of same sex marriages in Illinois, and the legislative history reflects the intent that
partners joined in a civil union and married spouses generally shall share the same benefits and
rights in relation to their respective mates. The equation of partners’ rights and obligations in
relation to each other does not necessarily equate civil union partners to married spouses in
relation to children, however. Cf. 750 ILCS 5/505(a) (West 2018) (child support following
dissolution of marriage or, as specifically included, civil union).
¶5 The Marriage Act specifically addresses in part the allocation of parental responsibilities,
including establishing visitation with a minor child by an individual who is a nonparent of such
child. Requirements of nonparent standing to seek visitation and parental allocation of
responsibilities are designed to safeguard the superior right of a natural parent to make decisions
for his or her child. See In re Custody of M.C.C., 383 Ill. App. 3d 913, 917 (2008) (Illinois law
clearly recognizes the superior rights of a natural parent to the care, custody, and control of his or
her child). The law presumes the natural parent’s right to physical custody of his or her child is
superior to that of a nonparent and that it is in the best interest of the child to be raised by natural
parents. In re Custody of M.C.C., 383 Ill. App. 3d at 917. This is the reason why the Marriage
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Act carves out specific exceptions delineating which nonparent individuals have standing to seek
to establish rights to spend time or make decisions with or for a minor child not their own.
¶6 A stepparent under the Marriage Act is expressly defined as someone who is or was
married to the parent, immediately prior to his or her death, of the child in question. 750 ILCS
5/600(l), 602.9(a)(3). Neither of these sections mentions or includes partners to a civil union. The
question therefore becomes whether stepparentage for purposes of having standing to seek
visitation and an allocation of parental responsibility requires a legal marriage as opposed to a
civil union partnership. Given the interest the State 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. The answer
therefore is yes, stepparentage requires a legal marriage as opposed to a civil union.
¶7 We initially note that Kris is asking for relief under the Marriage Act, yet Kris and her
former civil union partner, Father, 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.
¶8 More importantly, the provisions of the Marriage Act at issue here were adopted in 2016,
well after Illinois began recognizing civil unions in 2011. The Marriage Act, even after the most
recent amendments in 2017 and 2018, is devoid of any reference to partners joined in civil
unions when defining parties that qualify as stepparents for purposes of determining nonparent
standing under the Marriage Act. We agree that the omission of any reference to partners joined
by civil unions in the definition of stepparents reflects a legislative intent not to include civil
union partners in the category of nonparents who have standing to seek visitation.
4
¶9 Again, parents have a fundamental constitutionally protected interest to make decisions
concerning the care, custody, and control of their children. There is no case law that completely
addresses the issue of whether or not a party to a civil union is to be considered a stepparent for
standing to seek visitation or allocation of parental responsibilities. Looking for guidance from
similar situations of people involved in a minor child’s life who were not the child’s legal or
biological parent, and were not married to the child’s legal or biological parent, but who sought
visitation or allocation of parental responsibilities with respect to a minor child, we find that the
nonparent, even though they may have had a close relationship with the child, could not seek
visitation or allocation of parental responsibilities, because he or she lacked standing to do so.
See In re Parentage of Scarlett Z.-D., 2015 IL 117904, ¶ 68; In re Visitation of J.T.H., 2015 IL
App (1st) 142384, ¶ 28. The underlying principles guiding these decisions dictate that nonparent
standing requirements be strictly construed. Accordingly, we conclude that strictly construing
and applying the restrictive language of the Marriage Act regarding nonparent standing is
required by the constitutionally mandated deference given to parents to determine who shall
associate with, and exercise control over, their children. In re Parentage of Scarlett Z.-D., 2015
IL 117904, ¶ 35 (standing requirement that restricts nonparents who seek to assert custodial
rights over children “safeguards the superior right of parents to the care and custody of their
children”). 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.
To allow Kris standing to request visitation with A.S. under these circumstances essentially
indicates that Kris’s rights under the Civil Union Act trump Mother’s constitutional rights to
5
make decisions for her own child, contrary to the express language and protections of the
Marriage Act. Unless, and until, the legislature amends the statutory definition of a stepparent or
expands the categories of nonparents who have standing, a party to a civil union lacks statutory
standing to bring a claim for visitation or parental responsibilities.
¶ 10 In summary, the plain language of sections 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
circuit court therefore exceeded its authority in expanding the statutory definition that governs
who may and may not petition for visitation and parental rights in relation to a child and erred in
issuing the order that granted Kris’s petition for leave to intervene in this instance.
¶ 11 For the aforementioned reasons, we answer both certified questions for interlocutory
appeal in the negative. We reverse the ruling of the circuit court of Madison County and remand
for further proceedings consistent with this disposition.
¶ 12 Reversed and remanded.
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2019 IL App (5th) 170321
NO. 5-17-0321
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
MATT SHARPE, ) Appeal from the
) Circuit Court of
Petitioner, ) Madison County.
)
v. ) No. 11-D-1210
)
CRYSTAL WESTMORELAND, )
)
Respondent-Appellant )
) Honorable
(Gregg Sharpe, Intervenor; Kris Fulkerson, ) Martin J. Mengarelli,
Intervenor-Appellee). ) Judge, presiding.
_____________________________________________________________________________________
Rule 23 Order Filed: March 29, 2019
Motion to Publish Granted: April 11, 2019
Opinion Filed: April 11, 2019
_____________________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Thomas M. Welch, J., and
Honorable Melissa A. Chapman, J.,
Concur
_____________________________________________________________________________________
Attorney Barbara L. Sherer, Sherer Law Offices, 517 St. Louis Street, Edwardsville, IL
for 62025
Appellant
_____________________________________________________________________________________
Attorneys Robert R. Stauffer, Clifford W. Berlow, Sarah F. Weiss, Jenner & Block
for LLP, 353 N. Clark Street, Chicago, IL 60654-3456; Jayni D. Lintvedt,
Appellee Courtney · Clark Law, P.C., 104 S. Charles Street, Belleville, IL 62220;
John A. Knight, Roger Baldwin Foundation of ACLU, Inc., 150 N. Michigan
Ave., Suite 600, Chicago, IL 60601 (attorneys for Kris Fulkerson, Intervenor-
Appellee)
_____________________________________________________________________________________