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Same-Sex Married, No Cross-Adoption? Scarlett Z. Says “No ‘Functional Parent’ For You!!”

by Wes Cowell; updated 1 June 2015.


If you're in a same-sex marriiage and have not adopted your partner's adopted children, you have no parental rights!  So sayeth the Illinois Supremes in In re: Parentage of Scarlett Z.  


What'we're talking about, here, are several theories of "functional parents."  The Scarlett Z. case was born of a (heterosexual) couple who never married, the mother adopted a child but the father never adopted the child, and four years later then they broke up.  When the father tried to bring "functional parent" claims, common law claims, and even constitutional claims, he struck out across the board.  This ruling is no big surprise for couples who never marry, but it sounds a loud and clear warning for same-sex couples where one parent adopts children and the other doesn't bother to join in the adoption  thinking "Why should I bother?  We're married, so the child is mine, too."  


Here are the salient points:  


Jim and Maria met in 1999, fell in love, and moved in together.  Also in 1999, Scarlett was born in Slovakia.  Jim supported Maria and they became engaged a year or two later -- right around the time Scarlett's biological mother's parental rights were being terminated and Scarlett was being placed in an orphanage.  In 2003, on one of Maria's frequent trips to her native Slovakia, she adopted 3-year-old "Scarlett Z."   Jim couldn't be part of the adoption (not married and not a Slovak).  Jim supported Maria throughout the year-long process while she remained in Slovakia.  Jim travelled to see her five times and took part in a phychological screening.  In 2004, everythign was approved, and Jim, Maria, and Scarlett all went home to Elmhurst, Illinois.


Jim was the father figure in Scarlett's life.  Scarlett called him "Daddy."  Scarlett's last name was hyphenated to include Jim's, and Jim was listed in Scarlett's school records as her father.  Jim support the family and he even set up a $500,000 irrevocable trust for Scarlett.  Jim brought up the subject of adopting Scarlett every few months, but he and Maria never got around to it. 


Jim and Maria were very good parents and worked well together . . . for four years.  Things broke bad and Maria moved out in August, 2008, taking Scarlett with her.  Ouch.  Under existing Illinois law, Jim's attorney knew he didn't have any statutory authority to work with; so he filed a six count Petition and threw everything he had into it:


  • a Declaration of Parentage seeking joint sole or joint custody but with Scarlett to reside mostly with Jim and visit with Maria,

  • an equitable division of child support,

  • breach of Maria's oral contract that they would be equal parents of Scarlett,

  • promissory estoppel,

  • breach of Maria's implied contract, and

  • breach of a contract implied at law.


The trial court threw out counts 3, 4, 5 and 6; and then said Jim lacked standing to bring the case (throwing out count 1).  Since Jim had no relationship to Scarlett, he didnt' have to pay child support, so the court threw out count 2, as well.  Jim lost everything


You can ignore this paragraph about the case's procedure, if you want, but it's impressive  Get your scorecard out and sharpen your pencil, because this gets complicated.  Jim appealed, but the appellate court affirmed the trial court's dismissal of Jim's case.  Jim appealed to the Illinois Supreme Court, but the Supremes didn't take the case. They did, however, say that the appellate court should take a second look at Jim's claims based on the "equitable adoption doctrine" announced in Dehart v. DeHart, 2013 IL 114137.  The appellate court did take a second look at Jim's claim in light of DeHart  and siaid that, on second thought, maybe Jim should be allowed to proceed on counts 1 and 2, but reaffirmed the dismissal of counts 3, 4,5 and 6.  In other words, the appellate court thought the "equitable adoption" doctrine might be a basis for Jim to claim standing.  They sent the case back to the trial court for some fact-finding.  Maria didn't like that idea and appealed the appellate court's second ruling back to the Illinois Supreme Court.  Jim cross appealed, complaining that the appellate court (the second time around) shouldn't have tossed his common law claims (nos. 3 - 6).


The Illinois Supreme Court took up Maria's and Jim's cross appeals.  The case hinged on whether Jim had standing to bring his case in the first place . . . under A) the doctrine of equitable estoppel, B) the "functional parent" theory," or C) the equitable adoption" doctrine.


A)  Equitable Estoppel:    "Estoppel" is the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person.  Both the trial court and the appellate court thought Jim didn't have enough to go on but, the second time around the appellate court thought maybe, just maybe, Jim might have a case.


To establish equitable estoppel, Jim needed to show that


  • Maria misrepresented or concealed material facts;

  • Maria knew at the time the representations were made that the representations were untrue;

  • Jim did not know that the representations were untrue when they were made and when he acted upon them;

  • Maria intended or reasonably expected the representations to be acted upon by Jim (or the public)

  • Jim reasonably relied on Maria's misrepresentations in good faith OR to his detriment; and

  • Jim had been prejudiced by his reliance on Maria's representations.


The Supremes said "[t]he test is whether, considering all the circumstances, conscience and the duty of honest dealing should deny one the right to repudiate the consequences of his or her represenatations or conduct."  In re:  Parentage of Scarlett Z.-D, 2015 IL 117904, citing Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. 114 Ill,. 2d 133 148 (1986).


Obviously, under that scrutiny, Jim lost the "equitable estoppel" claim because Maria never made any misrepresentations.  "A promise to do something in the future does not constitute a factual misrepresentation . . . a misrepresentation, to be actionable, 'must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening."  In re:  Parentage of Scarlett Z.-D, 2015 IL 117904, citing Sinclair v. Sullivan Chevrolet Co.,  31 Ill. 2d 507, 510 (1964).  Srike one!


B)  Functional Parent:  The Functional Parent theory (also known as the "psychological parent" or "de facto parent" -- as an aside, state courts around the nation use these terms interchangeably, they really have different meanings.  See, the American Law Institute's Principles of Family Dissolution) is a common law doctrine arising from a child's relationship with a non-parent that, by any observation, is equivalent to a parent-child relationship -- deep emotional bonds and daily nuture and guidance -- but lacking the legal documents.  Illinois courts have NEVER allowed the functional parent theory any credence.  The Illinois Supreme Court acknowledged that many states allow non-parents to bring cases under the functional parent theory.  Still, they say, this area of the law is too complicated for judges to just wade in and start mucking around.  If you want this kind of law in Illinois, get the legislature to put it in writing.  Strike two!


C)  Equitable Adoption:  "[T]he doctirine 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."  In re:  Parentage of Scarlett Z.-D, 2015 IL 117904, @ para. 46.  In other words, equitable adoption is used in probate court after someone dies, not in family court when parents fight over custody.


The big Illinios case on equitable adoption is DeHart v. Dehart2013 IL 114137.  When baby James was two years old, Donald DeHart married James' mom, hired an attorney to do an adoption, received a birth certificate for James listing Donald as the father, and everyone thought the adoption was a done deal.  Thereafter, Donald treated James like his own son and told everyone that James was, in fact, Donald's own son -- the adoption "was kept secret for the good of the family."  Imagine James' surprise when he was 56 years old, applied for a passport and needed his true birth certificate, and learned he was not Donald's biological son.  YOWZA!!!!  His Mom was suffering from dementia and died the following year.  Donald continued to hold James out as his son, though, and even wrote a will leaving a lot to James. 


Four years later, at the age of 83, Donald married a woman 30 years his junior -- young enough to be James' little sister.  Donald's mind began to cloud and not long after the marriage, Donald's wife had him sign a will stating he never had any children, never mentioned James, and left everything to his second Wife2.


When Donald died, Wife2 filed the second will with the court.  James contested the will alleging several grounds, including "equitable adoption."  James lost at the trial level (Illinois had never recognized "equitable adoption," before, so the trial court didn't have that solution in its toolbox), but the appellate court agreed with James.  The Illinois Supreme Court affirmed and, in doing so, announced that Illinois courts should recognize the common law doctrine of equitable adoption.


Back to Scarlett Z:  Jim D. argued that the "equitable adoption" rationale should be applied in his case.  The Supremes disagreed, and Jim lost out.  Strike three!  Scarlett's Mom carried the day and Jim was left out in the cold.  


So, for all you same-sex married and civilly-unioned coupels, out there, if only one parent adopts the children, the other (non-adopting) parent has no legal recourse -- there is no "fucnatoinal parent" approach, no common law approach, not even a constitutional approach.  The fact that you're married carries no weight because there is no legal theory by which to gain standing to get the matter infront of the court.  No cross adoption?  No rights for you!!

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