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                                      Appellate Court                             Date: 2019.07.02
                                                                                  13:21:33 -05'00'




                      Sharpe v. Westmoreland, 2019 IL App (5th) 170321



Appellate Court           MATT SHARPE, Petitioner, v. CRYSTAL WESTMORELAND,
Caption                   Respondent-Appellant (Gregg Sharpe, Intervenor; Kris Fulkerson,
                          Intervenor-Appellee).



District & No.            Fifth District
                          Docket No. 5-17-0321



Rule 23 order filed       March 29, 2019
Motion to
publish granted           April 11, 2019
Opinion filed             April 11, 2019



Decision Under            Appeal from the Circuit Court of Madison County, No. 11-D-1210;
Review                    the Hon. Martin J. Mengarelli, Judge, presiding.



Judgment                  Reversed and remanded.


Counsel on                Barbara L. Sherer, of Sherer Law Offices, of Edwardsville, for
Appeal                    appellant.

                          Robert R. Stauffer, Clifford W. Berlow, and Sarah F. Weiss, of Jenner
                          & Block LLP, John Knight, of Roger Baldwin Foundation of ACLU,
                          Inc., both of Chicago, and Jayni D. Lintvedt, of Courtney Clark Law,
                          P.C., of Belleville, for intervenor-appellee.
     Panel                     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 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
       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 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
       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.


             *
             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.

                                                    -2-
¶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 Supp. 2017)
     (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 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) (West 2016). 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.

                                                  -3-
¶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 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.




                                                  -4-
