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.
                                                 1
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




                                                   3
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.




                                                  6
                                    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)
_____________________________________________________________________________________
