In re Parentage of Scarlett Z.-D.

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266Appellate Court In re PARENTAGE OF SCARLETT Z.-D., a minor (James R.D.,
Caption Petitioner-Appellant, v. Maria Z., Respondent-Appellee).
District & No. Second District
Docket No. 2-12-0266
Filed August 30, 2012
Held Petitioner had no standing under the Illinois Marriage and Dissolution of
(Note: This syllabus Marriage Act or the Parentage Act to seek a declaration of parentage and
constitutes no part of custody of the child adopted in Slovakia by the woman he was engaged
the opinion of the court to marry, notwithstanding the fact that the three lived together as a family
but has been prepared for several years, since they were never married, petitioner did not adopt
by the Reporter of the child, no steps were taken to obtain recognition in Illinois of the
Decisions for the adoption by respondent, and there was no Illinois common law supporting
convenience of the his claims.
reader.)
Decision Under Appeal from the Circuit Court of Du Page County, No. 08-F-451; the
Review Hon. Timothy J. McJoynt, Judge, presiding.
Judgment Affirmed.
Counsel on Richard D. Felice, of Law Offices, of Richard D. Felice, P.C., of
Appeal Wheaton, Camilla B. Taylor and Thomas W. Ude, Jr., both of Lambda
Legal Defense & Education Fund, Inc., of Chicago, for appellant.
John Knight, of Roger Baldwin Foundation of ACLU, Inc., and Ari Z.
Cohn and Frank M. Dickerson III, both of Mayer Brown LLP, both of
Chicago, for amicus curiae, American Civil Liberties Union of Illinois.
Hugh S. Balsam and Andy J. Miller, both of Locke Lord LLP, of
Chicago, for amici curiae Chicago Appleseed Fund for Justice, Family
Equality Council, and Family Institute at Northwestern University.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the
judgment and opinion.
OPINION
¶1 Petitioner, James R.D. (Jim), appeals from the trial court’s dismissal under section 2-615
of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)) of his contract claims and
from the court’s denial, following trial, of his claims for custody, visitation, and child
support. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 Jim and respondent, Maria Z. (Maria), began living together as a couple in 1999. They
became engaged in 2000 or 2001. In early 2003, Maria went to Slovakia to visit family.
While there, she met Scarlett, a 3½-year-old orphan girl. Maria commenced the process of
adopting Scarlett under Slovakian law. During the year-long adoption process, Maria lived
in Slovakia. Under Slovakian law, Jim was not permitted to adopt Scarlett because he was
neither a Slovakian national nor married to Maria, but he was involved in the process and
traveled to Slovakia approximately five times during that period. In 2004, Maria returned to
the United States with Scarlett, and the parties lived together with Scarlett as a family. The
parties never married, and neither took any steps to obtain recognition of the adoption in
Illinois. Jim did not adopt Scarlett.
¶4 By August 2008, the parties’ relationship had deteriorated, and Maria moved out with
Scarlett. On August 22, 2008, Jim filed a petition for declaration of parental rights, which
the trial court struck on Maria’s motion. Jim subsequently filed an “Amended Motion and
-2-
Petition for Adoption,” which the trial court allowed him to withdraw. On May 11, 2009, Jim
filed the action to establish parentage at issue here. In count I, Jim requested a declaration
of parentage and an order granting the parties joint legal and physical custody or,
alternatively, granting him primary custody with reasonable visitation for Maria. In count II,
Jim sought an equitable division of child support between the parties. Counts III through VI,
entitled breach of oral agreement, promissory estoppel, breach of implied contract in fact,
and breach of implied contract in law, respectively, each prayed for relief in the form of
custody, visitation, and child support determinations.
¶5 On May 29, 2009, Maria filed a section 2-615 motion to dismiss, alleging, inter alia, that
Jim’s petition failed to state a cause of action because it did not address the threshold
question of Jim’s standing under either section 601(b)(2) of the Illinois Marriage and
Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/601(b)(2) (West 2010)) or
section 7 of the Illinois Parentage Act of 1984 (750 ILCS 45/7 (West 2008)). Jim filed a
response, arguing that a section 2-615 motion was not the proper vehicle to raise the issue
of standing and that Maria had, therefore, waived her standing argument. The trial court
entered an order allowing 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 instead filed
a section 2-619 (735 ILCS 5/2-619 (West 2010)) motion to dismiss, asserting lack of
standing under section 601 of the Dissolution Act, based on the affirmative matter that
Scarlett had always been in Maria’s physical custody since her adoption. Jim moved to strike
Maria’s section 2-619 motion.
¶6 On August 25, 2009, the trial court heard argument on Jim’s motion to strike Maria’s
section 2-619 motion. In addition to arguing that the motion was untimely, Jim contended
that Maria improperly raised the affirmative defense of standing in her section 2-615 motion
to dismiss and had, therefore, waived the standing defense. The court began by asking Jim’s
counsel, “So if I let [Maria’s counsel] replead and relabel it [section 2-]619, are we right
back where we started?” After hearing the parties’ arguments, the court noted that “standing
is the linchpin of the attacking motions that were up for hearing.” The court reasoned that,
“whether it’s a 2-615 or a 2-619, I think it’s been adequately pled in a timely fashion.” The
court found that the issue of standing was not a surprise to Jim. The court concluded that
“[t]here’s been no waiver.” The court then offered Jim the option of allowing Maria to refile
her section 2-615 motion as a section 2-619 motion so that Jim could supplement his
response “with affidavits and the like.” Jim’s counsel asked if a temporary visitation order
could be entered if they chose to replead, and the court said no. Maria’s counsel reminded
the court that Maria had already filed the section 2-619 motion. Jim then opted to accept the
additional time offered to submit affidavits and file a response to Maria’s section 2-619
motion, which he did.
¶7 On October 7, 2009, the trial court heard argument on both of Maria’s motions to
dismiss. The court denied Maria’s section 2-619 motion in its entirety. With respect to
Maria’s section 2-615 motion, the court denied the motion as to counts I and II. However,
the court granted the motion to dismiss counts III through VI, concluding that there was no
common-law cause of action for paternity, that the claims did not meet the elements of
contract law, and that the purported contracts “could be void [as] against public policy.”
-3-
¶8 From that portion of the court’s October 7, 2009, order denying her section 2-619 motion
to dismiss, Maria filed a petition for leave to appeal to this court. We denied the petition as
untimely. In re Parentage of Scarlett Z-D., No. 2-09-1280 (2009) (unpublished order under
Supreme Court Rule 23).
¶9 Thereafter, the case proceeded on counts I and II of Jim’s petition. Maria filed her answer
to Jim’s petition, raising the affirmative defense of standing. The court appointed a guardian
ad litem (GAL) and ordered the parties to attend mediation. On the GAL’s motion, the court
ordered that Jim have supervised visitation with Scarlett. Scarlett attended counseling. The
court appointed a custody evaluator. Later, the court appointed a visitation facilitator to
facilitate visits and make a report of her observations.
¶ 10 Trial commenced on May 10, 2011, spanning 17 days of testimony over 7 months. The
parties presented extensive evidence. The witnesses included the parties, Dr. Shapiro (the
custody evaluator), Dr. Warren (the visitation facilitator), and Joseph Beck (the GAL), as
well as many friends, neighbors, and relatives of the parties. Numerous exhibits were
admitted, including Dr. Shapiro’s custody evaluation, Dr. Warren’s observation notes, family
photographs and videos, and Scarlett’s school records and art work.
¶ 11 The parties rested their respective cases on December 16, 2011. The court granted
Maria’s previously filed motion for an in camera interview of Scarlett, and conducted the
interview that day. On January 23, 2012, the parties submitted written closing arguments. On
February 9, 2012, the court granted Maria’s motion to supplement her closing argument with
the February 2, 2012, decision in In re Marriage of Mancine, 2012 IL App (1st) 111138, pet.
for leave to appeal pending, No. 113978 (filed Mar. 8, 2012).
¶ 12 The trial court entered its written opinion and order on February 29, 2012. The court
found that “for a long time during and after the adoption of [Scarlett], Jim and Maria lived
together with the child as an intact family unit as if they were bound legally.” The court
found that Jim and Maria planned and participated in the adoption together and that Jim paid
for it all and supported Maria during the process. The court found that Jim never adopted
Scarlett but that the parties had discussed it. The court stated, “The reasons for these
inactions are basically unknown except for the ‘falling out’ Jim and Maria had some time
later.” The court found that, for four years or more, Scarlett lived with Jim, called him
“daddy,” and looked to him as a father figure. The court concluded that Jim was “a fit and
proper person” to have visitation or custody. The court found that, after Maria separated from
Jim and took Scarlett with her, Scarlett “expressed a desire to continue to see Jim[,] and
Maria prevented and blocked such contact.” The court believed that the GAL’s request for
visitation early in the case reflected Scarlett’s desires at that time. The court found
“considerable evidence that taking Jim out of [Scarlett’s] life in 2008 was not good for
[her].” The court noted that Dr. Warren, who had observed over 50 visits between Jim and
Scarlett, and Dr. Shapiro, who had evaluated Scarlett, both concluded that Jim and Scarlett
shared a bond and that Maria had alienated Scarlett from Jim. The court stated that it
disregarded the in camera interview with Scarlett because it “became immediately obvious
to the court that the child was committed to telling the court that she no longer want[ed] to
see Jim.” The court concluded that Scarlett had been “coached” and “corrupted” and that
these were not “her true thoughts.” The court said, “[I]t is obvious that the court is unhappy
-4-
with Maria’s conduct in this case and is quite sympathetic to Jim’s position. And more
importantly, the court is very concerned that finding against Jim will take him out of
[Scarlett’s] life and that this will be bad for [her] and not in her best interests.”
¶ 13 Still, the court noted that it was “bound to follow the law as it exists now” and that,
despite its concerns regarding best interests, it could not, under current law, reach that issue
without first finding that Jim had standing. The court observed that “the standing issue never
really changed in the trial.” The court found that “Maria correctly argue[d] she is the sole
parent and Jim has no statutory legal standing.” The court also noted Maria’s constitutional
right to parent “the way she chooses–good or bad,” but expressed concern about Scarlett’s
right “to have a decent life.” The court remarked that “these situations *** need legislation
badly” but that it was “without authority to invent new common[-]law theories or somehow
create judicial legislation.” The court concluded that, especially under Mancine, it had no
basis to find that Jim had standing. The court denied counts I and II of Jim’s petition and
vacated all of its prior orders regarding visitation and counseling.
¶ 14 Also on February 29, 2012, the trial court denied Jim’s oral motion for a stay of that
portion of its order vacating all prior visitation and counseling orders. Jim timely appealed
from the court’s denial of his petition. He subsequently filed an emergency motion in this
court pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2004), seeking to stay the
trial court’s order vacating its previous orders for visitation and counseling, which we
granted.
¶ 15 Thereafter, we granted leave to the American Civil Liberties Union of Illinois and,
jointly, to the Family Institute at Northwestern University, the Chicago Appleseed Fund for
Justice, and the Family Equality Council, to file briefs amici curiae in support of Jim.
¶ 16 ANALYSIS
¶ 17 Jim initially argues that the trial court erred in denying count I of his petition, seeking
custody, because (1) Maria waived the issue of standing by failing to file a timely section 2-
619 motion, (2) Maria was equitably estopped from challenging Jim’s standing, because of
her conduct in holding him out to be Scarlett’s father, and (3) he has common-law standing.
¶ 18 We determine that Maria did not waive the issue of standing. Section 601(b) of the
Dissolution Act provides that a custody proceeding may be commenced by a parent (750
ILCS 5/601(b)(1) (West 2010)) or “by a person other than a parent *** but only if [the child]
is not in the physical custody of one of his parents” (750 ILCS 5/601(b)(2) (West 2010)). Our
supreme court has interpreted section 601(b)(2) as a standing requirement. In re R.L.S., 218
Ill. 2d 428, 434-35 (2006). Section 2 of the Parentage Act of 19841 provides that a “ ‘parent
and child relationship’ means the legal relationship existing between a child and his natural
or adoptive parents incident to which the law confers or imposes rights, privileges, duties,
and obligations.” 750 ILCS 45/2 (West 2010). In the context of a nonparent seeking custody
under section 601(b)(2) of the Dissolution Act, standing is a threshold issue that the trial
1
The Dissolution Act does not define the term “parent.”
-5-
court must decide before proceeding to a best-interests determination. Mancine, 2012 IL App
(1st) 111138, ¶ 17; see also R.L.S., 218 Ill. 2d at 436 (holding that section 11-5(b) of the
Probate Act of 1975 (755 ILCS 5/11-5(b) (West 2004)) imposes a standing requirement that
nonparents must meet before proceeding on the merits of a petition for guardianship).
¶ 19 Under section 2-615, a complaint may be dismissed for failure to state a cause of action
because of factual or legal insufficiency. Cummings v. City of Waterloo, 289 Ill. App. 3d 474,
478 (1997). “A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of
a complaint, but asserts affirmative matters that avoid or defeat the allegations contained in
the complaint.” Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 525 (2005). Here, Maria
alleged in her section 2-615 motion that Jim’s petition did not state a cause of action because
it failed to address the threshold issue of standing under either the Dissolution Act or the
Parentage Act of 1984. We cannot say that it was improper to raise the standing issue in a
section 2-615 motion,2 because the issue was raised as a factual insufficiency on the face of
the petition, namely, that Jim failed to allege any facts that would have brought him within
the purview of either the Dissolution Act or the Parentage Act of 1984. See Cummings, 289
Ill. App. 3d at 479 (“[A] factually insufficient complaint fails to allege sufficient facts
essential to the cause of action.”). That Maria subsequently raised lack of standing, based on
the affirmative matter that Scarlett was in Maria’s physical custody, in a section 2-619
motion, although arguably untimely and filed without leave, does not change the fact that the
issue of standing had already been raised. We agree with the trial court that standing was the
“linchpin” of both motions to dismiss and that “[t]here’s been no waiver.” We note that Jim
does not, indeed cannot, argue that he was prejudiced, because, as the trial court pointed out,
the issue of standing was clearly at issue and not a surprise. Accordingly, Jim’s waiver
argument has no merit. See In re Custody of McCarthy, 157 Ill. App. 3d 377, 380-81 (1987)
(holding that, where there was no prejudice, the trial court did not abuse its discretion in
allowing a tardy motion to dismiss based on a defense not raised in the answer).
¶ 20 Before addressing Jim’s equitable estoppel argument, we examine his central argument
that he had common-law standing to bring his custody claim. As stated above, the standing
requirement that a nonparent may petition for custody only if the child is not in the physical
custody of a parent is a threshold issue that the trial court must decide before proceeding to
a best-interests determination. In enacting this standing requirement, our legislature
incorporated the superior rights doctrine into the Dissolution Act. Mancine, 2012 IL App
(1st) 111138, ¶ 15; see also R.L.S., 218 Ill. 2d at 434 (observing that the superior rights
2
We are aware of cases holding that lack of standing under section 601(b)(2) is an
affirmative defense that is waived if not raised in a timely section 2-619 motion to dismiss. See, e.g.,
In re K.P.L., 304 Ill. App. 3d 481, 487 (1999). However, we are convinced that, under the
circumstances presented here, Maria could properly raise standing in a section 2-615 motion. In any
event, the trial court had discretion to allow Maria’s tardy section 2-619 motion because it did not
prejudice Jim.
-6-
doctrine is incorporated into both the Dissolution Act and the Probate Act3). The superior
rights doctrine recognizes parents’ interest in the care, custody, and control of their children,
which is “ ‘perhaps the oldest of the fundamental liberty interests.’ ” R.L.S., 218 Ill. 2d at 438(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)); see also Mancine, 2012 IL App (1st)
111138, ¶ 15 (stating that the “superior rights doctrine *** holds that parents have the
superior right to care, custody, and control of their children”). Fit parents enjoy a
presumption that they act in the best interests of their children. R.L.S., 218 Ill. 2d at 439
(citing Troxel, 530 U.S. at 68). “[S]o long as a parent adequately cares for his or her children
(i.e., is fit), there will normally be no reason for the State to inject itself into the private realm
of the family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69 (holding a
Washington grandparent visitation statute unconstitutional as applied because it allowed the
petitioners to proceed straight to a best-interests analysis without any deference accorded to
the parent’s decision to limit grandparent visitation).
¶ 21 Generally, we review de novo a trial court’s determination on standing. In re
Guardianship of K.R.J., 405 Ill. App. 3d 527, 535 (2010). Although the trial court heard
extensive evidence and made factual findings, which we would review under the manifest-
weight-of-the-evidence standard (K.R.J., 405 Ill. App. 3d at 535), the parties do not challenge
the court’s factual findings. The standing issue presented here is purely a question of law,
which we review de novo. See In re Avery S., 2012 IL App (5th) 100565, ¶ 13.
¶ 22 Jim does not dispute the trial court’s conclusion that he lacks statutory standing. Because
he is not Scarlett’s biological or adoptive father, Jim does not meet the definition of a parent
under section 2 of the Parentage Act of 1984. Neither does Jim meet the standing
requirement of section 601(b)(2) of the Dissolution Act, since Scarlett has always been in
Maria’s physical custody. Rather, Jim contends that he has common-law standing based on
his parent-child relationship with Scarlett, whether he is characterized as an equitable parent,
a de facto parent, or a psychological parent, or under the doctrine of in loco parentis. He
urges us to decline to follow the First District “trilogy” of In re Visitation With C.B.L., 309
Ill. App. 3d 888 (1999), In re Marriage of Simmons, 355 Ill. App. 3d 942 (2005), and
Mancine, 2012 IL App (1st) 111138, because the cases were wrongly decided and conflict
with our supreme court’s precedent as well as “the vast majority of precedent” from our
appellate court.
¶ 23 C.B.L. involved a lesbian relationship during which one partner bore a child as a result
of artificial insemination. The nonparent was involved in the child’s birth and in caring for
the child for 1½ years, until the parties separated. C.B.L., 309 Ill. App. 3d at 889. The
nonparent filed suit, seeking visitation and claiming standing as a de facto parent or under
the doctrine of in loco parentis. C.B.L., 309 Ill. App. 3d at 889-90. The trial court dismissed
3
Section 11-5(b) of the Probate Act grants standing to a nonparent to petition for
guardianship if the petitioner shows that the child does not have a parent who is “willing and able
to make and carry out day-to-day child care decisions concerning the minor.” 755 ILCS 5/11-5(b)
(West 2010); R.L.S., 218 Ill. 2d at 435.
-7-
the suit for lack of standing, and the appellate court affirmed. C.B.L., 309 Ill. App. 3d at 889.
The appellate court held that standing to seek visitation is found only in the Dissolution Act
and that the nonparent’s claims of common-law standing were therefore without merit.
C.B.L., 309 Ill. App. 3d at 894.
¶ 24 Several years later, in Simmons, the First District extended its holding in C.B.L. to apply
to standing to seek custody. In Simmons, the parties “participated in a wedding ceremony,”
and the wife gave birth following artificial insemination. Simmons, 355 Ill. App. 3d at 945.
The husband, however, was a transsexual male who had been born a female. Simmons, 355
Ill. App. 3d at 945-46. The husband filed for dissolution of marriage and sought custody of
the child. The wife argued that the husband lacked standing because the same-sex marriage
was invalid under Illinois law and he was not the biological or adoptive father. The trial court
declared the marriage void ab initio, denied the dissolution petition, and granted sole custody
to the wife.4 Simmons, 355 Ill. App. 3d at 946. On appeal, the husband argued, inter alia, that
he had standing as an equitable or de facto parent. Simmons, 355 Ill. App. 3d at 946-47. The
court relied on C.B.L. to hold that standing to seek custody is found only in the Dissolution
Act, the Parentage Act of 1984, or the Illinois Parentage Act5 (750 ILCS 40/1 et seq. (West
2010)). Simmons, 355 Ill. App. 3d at 953-54.
¶ 25 Relying on Simmons, this year, the First District, in Mancine, affirmed the trial court’s
dismissal under section 2-619 of a husband’s petition for custody for lack of standing. In
Mancine, the adoptive mother of a child, W., became engaged to a man while she was in the
process of adopting as a single parent. Mancine, 2012 IL App (1st) 111138, ¶ 3. The parties
intended that the husband would adopt W. as a stepparent. Mancine, 2012 IL App (1st)
111138, ¶ 5. The parties married two months after the wife’s adoption was completed, and
the husband began, but never completed, the process of adopting W. Mancine, 2012 IL App
(1st) 111138, ¶¶ 5-6. The parties subsequently adopted a child, H., together. Mancine, 2012
IL App (1st) 111138, ¶ 6. About 16 months into the marriage, the wife filed a petition for
dissolution, in which she alleged that the parties had only one child, H. The husband filed
a counterpetition seeking custody of W. The wife filed a motion to dismiss, challenging the
husband’s standing, which the trial court granted. Mancine, 2012 IL App (1st) 111138, ¶ 9.
¶ 26 On appeal, the husband contended, inter alia, that he had standing as W.’s equitable
parent since he had been the child’s primary caretaker. Mancine, 2012 IL App (1st) 111138,
¶ 12. The court noted that Illinois has not recognized the equitable parent doctrine. Mancine,
2012 IL App (1st) 111138, ¶ 15 (citing In re A.K., 250 Ill. App. 3d 981, 986 (1993) (stating
that “the theory of making a man who is not the biological father of a child an ‘equitable
parent’ under certain appealing circumstances has never been recognized in Illinois”)). Citing
Simmons, the court stated that “standing to seek full care and custody of a minor child is
found solely within” the Dissolution Act, the Parentage Act of 1984, or the Illinois Parentage
Act. Mancine, 2012 IL App (1st) 111138, ¶ 16. The court stated that the husband did not
4
The court granted visitation rights to the husband. The wife did not contest the visitation
order, and the appellate court did not address the issue. Simmons, 355 Ill. App. 3d at 946.
5
This act applies only to children born as a result of artificial insemination.
-8-
qualify as a parent under section 2 of the Parentage Act of 1984 because he was neither the
biological nor the adoptive parent. Mancine, 2012 IL App (1st) 111138, ¶ 16. The court
further concluded that the husband lacked statutory standing as a nonparent under section
601(b)(2) of the Dissolution Act because the child was in the physical custody of his only
legal parent–the wife. Mancine, 2012 IL App (1st) 111138, ¶¶ 17-18.
¶ 27 We agree with the reasoning and the holding of Mancine. Under Mancine, Jim lacks both
statutory standing on the facts and common-law standing because the equitable parent
doctrine is not recognized in Illinois. Jim acknowledges his lack of standing under Mancine,
but he urges that Mancine was wrongly decided because the Dissolution Act and the
Parentage Act of 1984 did not supplant the common law and standing is not found solely in
the statutes. Therefore, according to Jim, he has common-law standing to seek custody. In
support of his position that the statutes did not supplant the common law, Jim relies on In
re Parentage of M.J., 203 Ill. 2d 526 (2003).
¶ 28 In M.J., the trial court dismissed a biological mother’s complaint seeking child support
from the man who was her former paramour. M.J., 203 Ill. 2d at 529. The mother alleged that
he had orally consented to her being artificially inseminated and had agreed to support the
twins born as a result. M.J., 203 Ill. 2d at 530-31. Upon discovering that the man was
married, the mother filed suit to establish paternity and to impose a support obligation,
seeking relief under both the common law and under the Illinois Parentage Act (750 ILCS
40/1 et seq. (West 2010)). M.J., 203 Ill. 2d at 531. The appellate court affirmed, but the
supreme court reversed as to the common-law claims. M.J., 203 Ill. 2d at 529.
¶ 29 The supreme court first noted Illinois’s strong public policy “recognizing the right of
every child to the physical, mental, emotional, and monetary support of his or her parents.”
M.J., 203 Ill. 2d at 539. The court observed that the Illinois Parentage Act, pertaining solely
to children born as a result of artificial insemination, contained only three sections and
included no language indicating an intent to prohibit common-law actions for child support.
M.J., 203 Ill. 2d at 539-40. The court also noted that “statutes and case law do not equivocate
in imposing child support obligations for other children born out of wedlock.” M.J., 203 Ill.
2d at 541. Based on this reasoning, the court held that the Illinois Parentage Act did not
preclude the mother’s common-law claims for child support. M.J., 203 Ill. 2d at 541. The
court concluded, “Our holding is limited to the unique circumstances of this case.” M.J., 203
Ill. 2d at 542; see Simmons, 355 Ill. App. 3d at 952-53 (stating that, although M.J. stood for
the proposition that a child support action could be brought under the common-law theories
of breach of contract and promissory estoppel, it did not support the proposition that a
custody action could be brought under the common law).
¶ 30 We note that our supreme court expressly limited its holding in M.J. to the “unique
circumstances” presented there, including the purported father’s financial support of twins
born to his paramour as a result of artificial insemination to which he allegedly consented.
See M.J., 203 Ill. 2d at 530-31. We also note that the court in M.J. addressed common-law
claims only for child support, not a common-law claim for custody as in the present case.
Moreover, there is a vast difference between the limited scope of the Illinois Parentage Act,
pertaining only to children born as a result of artificial insemination (see M.J., 203 Ill. 2d at
539 (“In considering the reach of the Illinois Parentage Act, we note that the statute contains
-9-
only three sections ***.”)), and the wide scope of the Dissolution Act, addressing custody
and visitation rights of both parents and nonparents. In the Dissolution Act, our legislature
created a comprehensive scheme addressing the rights of nonparents to seek both custody and
visitation, thereby evincing its intent to preclude common-law actions for custody or
visitation. See C.B.L., 309 Ill. App. 3d at 891 (noting that legislative intent to supplant the
common law can be shown through enactment of detailed and comprehensive legislation).
¶ 31 The Illinois Parentage Act took effect in 1984 and was amended only once, merely to
change its short title (Pub. Act 86-1475, art. 4, § 4-26 (eff. Jan. 10, 1991)). On the other
hand, the Dissolution Act took effect in 1977 and has been amended numerous times since
then. In particular, section 601 was amended to allow a stepparent to petition for custody
under certain circumstances (Pub. Act 90-782, § 5 (eff. Aug. 14, 1998)), and to allow, upon
the death of one parent, a grandparent to petition for custody under certain circumstances
(Pub. Act 93-1026, § 5 (eff. Jan. 1, 2005)). Section 607, providing for visitation rights, has
been amended numerous times. In Wickham v. Byrne, 199 Ill. 2d 309 (2002), our supreme
court held that the grandparent-visitation provisions in sections 607(b)(1) and 607(b)(3) (750
ILCS 5/607(b)(1), (b)(3) (West 2000)) were unconstitutional under Troxel. Wickham, 199
Ill. 2d at 320-21. The legislature subsequently amended the unconstitutional provisions,
adding conditions to grandparent visitation and establishing a rebuttable presumption that
a fit parent’s visitation decisions are not harmful to the child’s mental, physical, or emotional
health. Pub. Act 93-911, § 5 (eff. Jan. 1, 2005). In In re Marriage of Engelkens, 354 Ill. App.
3d 790 (2004), the court held that the stepparent-visitation provision in section 607(b)(1.5)
(750 ILCS 5/607(b)(1.5) (West 2002)) was unconstitutional under Troxel. Engelkens, 354
Ill. App. 3d at 794-95. Given our legislature’s creation of a complex, detailed, and evolving
scheme of custody and visitation in response to the increase of nontraditional families in
Illinois, we conclude that the legislature intended to supplant the common law of custody and
visitation in Illinois. See In re Marriage of Sullivan, 342 Ill. App. 3d 560, 564 (2003) (“The
effect of the Dissolution Act was to supersede and replace the common law with regard to
the subject matter it addressed.”); C.B.L., 309 Ill. App. 3d at 891 (holding that section 607
had supplanted the common law of visitation in Illinois because the statute had “evolved
from a simple, straightforward codification of the common law of parental visitation to a
complex and ever-growing statutory provision”).
¶ 32 Moreover, even assuming that the legislature did not intend to supplant the common law,
Jim has cited no Illinois case on point that would give him common-law standing to pursue
his custody claim. Jim’s reliance on Koelle v. Zwiren, 284 Ill. App. 3d 778 (1996), is not
persuasive. In Koelle, the biological mother lied to the nonparent (to whom she was a
maternal figure, as she had lived with the nonparent’s father in a romantic relationship during
the nonparent’s adolescence), telling him that he was her child’s biological father. Koelle,
284 Ill. App. 3d at 780-81. In reliance on that statement, and on the fact that the nonparent
had had a sexual encounter with the mother when he was 21 years old, the nonparent acted
as the child’s father for 8 years by babysitting for her, attending parent-teacher conferences,
and taking the child on recreational outings, even a family vacation with the mother. Koelle,
284 Ill. App. 3d at 781-82. Ultimately, paternity testing was done, and, when the nonparent
discovered that he was not the child’s father, he filed a complaint alleging various tort claims
-10-
and an equitable claim in which he sought injunctive relief in the form of visitation
privileges. Koelle, 284 Ill. App. 3d at 782. Following the trial court’s dismissal of his
complaint, the nonparent appealed. Koelle, 284 Ill. App. 3d at 783.
¶ 33 The appellate court reversed the dismissal of the equitable claim and remanded with
directions to the trial court to grant visitation privileges if it would be in the child’s best
interests. Koelle, 284 Ill. App. 3d at 786. Recognizing that neither the Dissolution Act nor
the Parentage Act of 1984 provided grounds for the nonparent’s visitation claim, the court
stated that “Illinois case law and general principles of equity support[ed] the claim.” Koelle,
284 Ill. App. 3d at 784. Relying on In re Townsend, 86 Ill. 2d 502 (1981), the court stated
that “awarding custody or visitation rights to a nonparent over the objection of a natural
parent is permissible if it would be in the best interests of the child.” Koelle, 284 Ill. App.
3d at 784.
¶ 34 We have serious doubts that Koelle, decided before Troxel, would survive scrutiny under
a Troxel analysis, because it placed a nonparent on equal footing with a parent and
completely bypassed the superior rights doctrine and its presumption in favor of a fit parent.
See Wickham, 199 Ill. 2d at 320 (holding that previous version of Illinois’s grandparent-
visitation statute was unconstitutional under Troxel because it put a nonparent on equal
footing with a parent in contravention of the presumption that fit parents act in the best
interests of their children). And, in fact, in R.L.S., our supreme court abrogated Townsend
and a line of pre-Troxel cases that incorrectly held that a fit parent’s custody rights are
subservient to the child’s best interests, and that held that, under the Probate Act, fit parents
are entitled to custody. R.L.S., 218 Ill. 2d at 444, 447-48 (holding that to construe the Probate
Act otherwise would run afoul of Troxel).
¶ 35 Jim’s reliance on In re Ashley K., 212 Ill. App. 3d 849 (1991), is also unavailing. In
Ashley K., the child was taken into protective custody within a week of her birth to drug-
addicted parents and subsequently adjudicated a neglected and dependent minor. Ashley K.,
212 Ill. App. 3d at 852-53. For the next five years, Ashley lived with her foster parents, who
wanted to adopt her. Ashley K., 212 Ill. App. 3d at 851-52, 854. Due to the trial court’s “total
ignorance or total disregard of the Federal law,” Ashley was “caught in the quagmire of the
bureaucratic maze,” never receiving the dispositional hearing to which she was entitled
within 18 months of her placement. Ashley K., 212 Ill. App. 3d at 873. The trial court
ultimately granted the biological parents’ petition to transfer custody back to them,
notwithstanding the fact that Ashley had never lived with them and had never even spent a
whole week with them during her entire lifetime. Ashley K., 212 Ill. App. 3d at 874. The
court’s order precluded visitation between Ashley and her foster parents. Ashley K., 212 Ill.
App. 3d at 851-52.
¶ 36 The appellate court reversed the custody judgment, ordered that there be visitation with
the foster parents, and remanded the case for a new hearing on the biological parents’
custody petition, based on the child’s best interests. Ashley K., 212 Ill. App. 3d at 890-91.
Although the court referred to the foster parents as Ashley’s de facto parents (Ashley K., 212
Ill. App. 3d at 874), the court was not called upon to address the issue of a nonparent’s
standing. Rather, the case involved the biological parents’ petition to regain custody of their
child, who had been adjudicated a neglected and dependent minor, after she had lived for five
-11-
years with her foster parents in a stable home (Ashley K., 212 Ill. App. 3d at 874). Not only
were the legal issues different from those in the present case, but also the egregious facts of
Ashley K. are clearly distinguishable. There, the biological parents’ fitness was questioned,
not only as to Ashley but also as to two of their other biological children. See Ashley K., 212
Ill. App. 3d at 855-56. Here, since her adoption Scarlett has never lived apart from Maria,
and Maria’s fitness has never been at issue.6
¶ 37 The remaining cases Jim cites in support of his argument that he has common-law
standing are also inapposite. See, e.g., Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039
(1981) (recognizing that a common-law tradition of allowing grandparent visitation was not
supplanted by an early version of the Dissolution Act that did not provide for any nonparent
visitation); Cebrzynski v. Cebrzynski, 63 Ill. App. 3d 66, 67, 73 (1978) (affirming trial court’s
grant of physical custody to stepmother with visitation to the biological mother where the
stepmother had had actual physical custody of the children for over three years and looking
at the Probate Act); Look v. Look, 21 Ill. App. 3d 454, 456-57, 459 (1974) (affirming the trial
court’s order granting custody to the grandparents instead of the biological father where the
child had lived with the grandparents for five years).
¶ 38 Jim further maintains that he has common-law standing based on the doctrine of parens
patriae. Jim asserts that under this doctrine courts have inherent authority to exercise
jurisdiction over children, independent of statute. The doctrine of parens patriae recognizes
the “general power and obligation of the government as a whole to protect minors and the
infirm” from neglect, abuse, and fraud. (Internal quotation marks omitted.) Mancine, 2012
IL App (1st) 111138, ¶ 36. The power was expressly incorporated into section 601(a) of the
Dissolution Act (750 ILCS 5/601(a) (West 2010)). Mancine, 2012 IL App (1st) 111138, ¶ 37.
However, this “emergency” power “is considered extraordinary and is not intended as the
basis of jurisdiction for general custody disputes between parents and others.” (Internal
quotation marks omitted.) Mancine, 2012 IL App (1st) 111138, ¶ 37. The court in Mancine
rejected the husband’s parens patriae argument. Mancine, 2012 IL App (1st) 111138, ¶¶ 36-
37. Given that the facts in Mancine did not warrant the court’s use of its parens patriae
power, we cannot say that the power is warranted here, where Jim has not even alleged that
Scarlett is subject to neglect or abuse. The cases cited by Jim do not convince us otherwise.
See, e.g., People ex rel. Lehman v. Lehman, 34 Ill. 2d 286, 287 (1966) (addressing proper
venue as between two different counties); People ex rel. Vallera v. Rivera, 39 Ill. App. 3d
775, 777 (1976) (reversing the trial court’s denial of the putative father’s visitation petition
(pending the mother’s paternity suit where the father admitted paternity) and remanding for
a hearing on best interests of the child).
¶ 39 Nor can we conclude under existing law that Maria should have been equitably estopped
from challenging Jim’s standing. Jim maintains that equitable estoppel applies because Maria
6
We are aware of the order of protection obtained by Jim ex parte in 2007, based on an
incident wherein Maria allegedly slapped Scarlett on the back of the head for disobedience.
However, two weeks later, the order of protection was dismissed by agreement. Moreover, the trial
court found, and neither party disputes, that, although Maria and Jim had different parenting styles,
with Maria being stricter, both were good parents.
-12-
actively encouraged Jim and Scarlett to form a father-child relationship and held them out
to the world as such. We review under the manifest-weight-of-the-evidence standard the trial
court’s determination that equitable estoppel did not apply. Morgan Place of Chicago v. City
of Chicago, 2012 IL App (1st) 091240, ¶ 33.
¶ 40 Initially we note that, in Mancine, the court rejected the same argument under similar
facts. The court in Mancine listed the factors necessary to prove equitable estoppel:
“ ‘(1) the other person misrepresented or concealed material facts; (2) the other person
knew at the time he or she made the representations that they 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 person intended or reasonably
expected that the party claiming estoppel would act upon the representations; (5) the
party claiming estoppel reasonably relied upon the representations in good faith to his or
her detriment; and (6) the party claiming estoppel would be prejudiced by his or her
reliance on the representations if the other person is permitted to deny the truth thereof.’ ”
Mancine, 2012 IL App (1st) 111138, ¶ 26 (quoting Geddes v. Mill Creek Country Club,
Inc., 196 Ill. 2d 302, 313-14 (2001)).
The court reasoned that “[e]quitable estoppel is available only if a party has relied upon
another party’s misrepresentation or concealment of a material fact.” Mancine, 2012 IL App
(1st) 111138, ¶ 27 (citing McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 492 (1997)).
Because the husband in Mancine “knew at all times that he was not the biological father of
[the child] and that formal adoption was necessary” (Mancine, 2012 IL App (1st) 111138,
¶ 27), and because the wife “did not misrepresent the material fact that [the husband] would
have to undergo the formal adoption process in order to be [the child’s] legal parent”
(Mancine, 2012 IL App (1st) 111138, ¶ 28), the court held that the doctrine of equitable
estoppel was not available (Mancine, 2012 IL App (1st) 111138, ¶ 29).
¶ 41 As in Mancine, 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 formal adoption in Illinois would
be necessary. Jim testified that it was the parties’ intent that both of them would pursue
adoption of Scarlett in this country. He said that he had initiated discussions with Maria
about adoption every three to six months through 2006. Jim testified that Maria’s response
was always positive but that she did not act upon his requests. He testified that, when he told
Maria that he had found an attorney to handle the adoption, Maria responded that she was
busy and that she wanted a Slovakian attorney. Jim also testified that, in 2007, shortly before
Maria and Scarlett were scheduled to visit Slovakia, he had asked Maria to sign a document
designating him as Scarlett’s short-term guardian. He testified that he was concerned that,
“if something happened overseas,” he would “still be able to see Scarlett and that Scarlett
would be raised” in the United States. Jim further testified that in 2008 and 2009 he had
investigated his rights as to Scarlett under Slovakian law and even talked to an attorney in
Slovakia. He never filed anything in Slovakia. When asked what, if anything, he had done
to secure United States citizenship for Scarlett, Jim replied that he himself could not do
anything. He stated, “All I can do is work through Maria.” By his own testimony, Jim was
clearly aware that he had no legal parent-child relationship with Scarlett. Maria made no
misrepresentations of fact as to Jim’s legal status in relation to Scarlett.
-13-
¶ 42 We note Jim’s argument in his reply brief that, whereas Mancine involved a child barely
two years old, the instant case “presents much stronger factual support for equity to step in”
because Scarlett was with Jim longer and had already suffered abandonment as an orphan in
Slovakia. We are quite aware of the distinguishing facts pointed out by Jim and are not at all
indifferent to Scarlett’s situation; nonetheless, we must act within the bounds of the law as
it exists.
¶ 43 In support of his equitable estoppel argument, Jim relies on In re Marriage of Schlam,
271 Ill. App. 3d 788 (1995). In Schlam, the biological mother of a child married a man when
the child was about six years old. Although the husband was not the child’s biological father,
the wife represented him as such and even gave the child the husband’s surname. The
husband formed a close relationship with the child and assumed financial responsibility for
her. The husband filed for divorce about six years later, and the parties entered into a joint
parenting agreement, which the trial court incorporated into the judgment of dissolution.
Schlam, 271 Ill. App. 3d at 791. For about two years thereafter, the husband provided
financially for the child and exercised his joint custody rights. Schlam, 271 Ill. App. 3d at
791-92. After a dispute between the parties, the husband filed a petition for a rule to show
cause, alleging that the wife was violating his rights under the joint parenting agreement, and
the wife responded with a petition to declare the agreement void ab initio. The trial court
granted the wife’s petition, and the husband appealed. Schlam, 271 Ill. App. 3d at 790.
¶ 44 The appellate court reversed, holding that the wife was equitably estopped from
challenging the joint parenting agreement. Schlam, 271 Ill. App. 3d at 794-95. The court
defined equitable estoppel as arising “ ‘when a party, by his words or conduct, intentionally
or through culpable negligence, induces reasonable reliance by another on his representations
and thus leads the other, as a result of that reliance, to change his position to his detriment.’ ”
Schlam, 271 Ill. App. 3d at 794 (quoting Zink v. Maple Investment & Development Corp.,
247 Ill. App. 3d 1032, 1039 (1993)). The court noted that the purpose of equitable estoppel
is to “prevent fraud and injustice.” Schlam, 271 Ill. App. 3d at 794. The court applied
estoppel to the wife because, in reliance on the wife’s intentional representation to the trial
court that the husband would remain a part of the child’s life, the husband obligated himself
to pay child support, provide health insurance, and have the child reside with him one-half
of each week. Schlam, 271 Ill. App. 3d at 794.
¶ 45 Schlam is inapposite. The court in Schlam did not apply the doctrine of equitable estoppel
to preclude the wife from challenging standing; rather, the court held that the wife was
equitably estopped from challenging the parties’ joint parenting agreement. Indeed, the wife
not only had failed to raise a lack of standing but had “implicitly represented to the trial court
[that the husband] had standing to petition for joint custody” (Schlam, 271 Ill. App. 3d at
796). Estoppel was based not on the wife’s conduct in holding the husband out as the child’s
father, but on her conduct in representing to the trial court that joint custody was in the
child’s best interests, thus implicitly representing that the husband had standing to seek joint
custody. Therefore, the husband reasonably relied on the agreement in anticipating that the
parent-child relationship would continue. Because the wife’s representations were made at
the end of the parties’ relationship and incorporated into the trial court’s dissolution order,
it was reasonable to believe that the wife’s representations constituted her permanent intent,
-14-
barring a substantial change in circumstances. See 750 ILCS 5/610(b) (West 2010)
(providing for modification of child custody judgment only on “clear and convincing
evidence, *** that a change has occurred in the circumstances *** and that the modification
is necessary to serve the best interest of the child”).
¶ 46 In contrast, in the present case, the evidence supports the determination that Maria’s
conduct did not rise to such a level, as she never made any representation to the trial court
of a father-daughter relationship. Instead, the representations about which Jim complains
were made to family and friends, and perhaps Scarlett’s school, while Jim and Maria were
contemplating marriage. Maria’s attempts to create a family, likely based on Jim’s promise
of marriage, could not reasonably induce Jim to believe that, absent that marriage, they
would always remain a family. Unlike in Schlam, Maria made no representations regarding
a continued relationship between Scarlett and Jim following the parties’ separation. That
Maria allowed Jim to see Scarlett for a few months following the separation is indicative of
a gratuitous undertaking that she had the right to revoke. See Engelkens, 354 Ill. App. 3d at
798 (holding that the stepmother could not enforce her agreement with the biological father
to allow her visitation, despite the stepmother’s having included the child on her health
insurance for years in reliance, because the agreement “was nothing more than a gratuitous
undertaking”). Consequently, Maria did not misrepresent any material fact, and Jim cannot
be said to have reasonably relied on Maria’s conduct prior to the separation.
¶ 47 Nor are we persuaded that Schlam is inconsistent with Mancine. Notwithstanding Jim’s
assertion to the contrary, the court in Mancine did not reject equitable estoppel based on a
requirement that the husband show fraud or intent to deceive. Mancine cited Geddes, a 2001
decision from our supreme court, which indicates that the first factor of equitable estoppel
is a misrepresentation or concealment of a material fact. The Mancine court’s conclusion that
the wife was not equitably estopped from challenging the husband’s standing reflected the
fact that, as in the present case, she had not misrepresented any material fact. Schlam was
based on different facts, where a misrepresentation of material fact was made.
¶ 48 Both Jim and the Illinois ACLU, in its amicus brief, cite a litany of out-of-state cases in
support of the proposition that this court should recognize common-law standing for Jim’s
custody claim. Cases from our sister states are not binding on this court. See Grafner v.
Department of Employment Security, 393 Ill. App. 3d 791, 801 (2009). Neither do we find
them persuasive, because Mancine is apposite Illinois law and the out-of-state cases cited are
not representative of Illinois law, which, as we discussed above, has never recognized
common-law standing for an equitable parent to seek custody when the child is in the
physical custody of a fit parent. Most of the cases cited are based on either a specific state
statute granting standing to a nonparent petitioner or on well-established common law within
that state. See, e.g., Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) (holding that the
biological mother’s former same-sex partner had standing to seek custody under a statute
granting standing to a nonparent who has physical custody and was acting as a parent, even
if the nonparent did so in a shared custody, coparenting situation); C.E.W. v. D.E.W., 2004
ME 43, 845 A.2d 1146 (affirming the trial court’s award of parental rights to the biological
mother’s former same-sex partner, where the mother conceded that the partner was the
child’s de facto parent under Maine’s common law, and rejecting the mother’s argument that
-15-
under relevant Maine statutory provisions a de facto parent’s rights are limited to visitation
only); Latham v. Schwerdtfeger, 802 N.W.2d 66 (Neb. 2011) (despite lack of statutory
standing, biological mother’s former same-sex partner had standing to seek custody and
visitation under the doctrine of in loco parentis, which was well established in Nebraska’s
common law); In re Clifford K., 619 S.E.2d 138 (W. Va. 2005) (following the biological
mother’s death, her same-sex partner was awarded custody as the psychological parent, over
the maternal grandfather, under the “exceptional cases” provision of a West Virginia statute).
But cf. In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995) (holding that biological
mother’s former same-sex partner lacked standing to seek custody, because she had not
demonstrated the mother’s unfitness or compelling circumstances requiring a custody
change, but holding that, based on the courts’ long-recognized equitable power, nonparent
could establish standing to seek visitation if she demonstrated a parent-like relationship with
the child and a significant triggering event justifying state intervention).
¶ 49 While we are not unsympathetic to Jim’s position, or indeed, to Scarlett’s situation
(especially having read the amicus brief submitted by the Family Institute at Northwestern
University, et al.), not only would it be inappropriate for us to ignore existing Illinois law,
but our doing so would likely be fraught with unintended consequences. Legal change in this
complex area of social significance must be the product of careful, extensive policy debate,
sensitive not only to the evolving realities of nontraditional families and the needs of the
persons within those families, not the least of whom are the children, but also to parents’
fundamental liberty interest embodied in the superior rights doctrine and its restriction of the
ability of the state to interfere in family matters. In short, the comprehensive legislative
solution demanded here must be provided by our General Assembly.7 See C.B.L., 309 Ill.
App. 3d at 895.
¶ 50 Jim further contends that the trial court’s denial of his petition violates both his and
Scarlett’s federal and state constitutional rights. Specifically, Jim urges that his and Scarlett’s
substantive due process rights to “familial association and integrity” were violated and that
Scarlett’s right to equal protection was violated because she was penalized “because of her
birth status or her parents’ marital status, which are beyond her control.” Our review of
constitutional issues is de novo. XLP Corp. v. County of Lake, 359 Ill. App. 3d 239, 243
(2005).
¶ 51 To the extent that Jim raises constitutional claims on Scarlett’s behalf, we must reject
them. The caption on Jim’s petition states, “Scarlett [Z.-D.], A Minor Child, by James
R.[D.], individually, and as next friend on behalf of minor child Scarlett [Z.-D.], Petitioners.”
We note that a minor may not bring a suit in her own name. Severs v. Country Mutual
7
One of the out-of-state cases that Jim and amicus cite is In re Parentage of L.B., 122 P.3d
161 (Wash. 2005) (en banc), which involved a judicial solution. There, the Washington Supreme
Court, in a matter of first impression, held that expanding its common law to recognize standing for
de facto parents to seek custody was consistent with its existing common law, and that the
Washington legislature, conspicuously silent on the matter, had not supplanted Washington’s
common law. The court adopted a de facto parentage test as delineated by the Wisconsin Supreme
Court in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995).
-16-
Insurance Co., 89 Ill. 2d 515, 520 (1982); Klak v. Skellion, 317 Ill. App. 3d 1092, 1094-95
(2000). Although Jim filed a motion to be appointed next friend, the trial court denied it
based on Jim’s status as a party, which created a conflict of interest. Furthermore, “a party
has standing to bring a constitutional challenge only if the party is able to show himself to
be within the class aggrieved by the alleged unconstitutionality.” In re Marriage of
Nienhouse, 355 Ill. App. 3d 146, 153 (2004). Thus, Jim may not assert Scarlett’s
constitutional rights.
¶ 52 Jim’s argument regarding his due process rights as a parent begs the question, as we have
made clear that Jim has not demonstrated that he is a parent under Illinois law. Jim’s reliance
on Prince v. Massachusetts, 321 U.S. 158 (1944), does not compel the conclusion that he has
a constitutional right to parental status. In Prince, the child’s aunt and legal guardian
challenged the constitutionality of Massachusetts’ child labor laws, under which she was
convicted for sending the nine-year-old child to distribute Jehovah’s Witnesses’ literature.
Prince, 321 U.S. at 159-61. She argued that the laws violated her right to freedom of religion
and her due process rights as a parent. Prince, 321 U.S. at 164. The Court’s analysis was
about parental constitutional rights. Prince, 321 U.S. at 165-70. However, the Court was not
called upon to address the aunt’s standing as a parent, as the aunt had legal custody of the
child. Prince, 321 U.S. at 161.
¶ 53 Jim cites Lehr v. Robertson, 463 U.S. 248 (1983), for the proposition that the
constitutional “interest in preserving the emotional attachments [children] develop with adult
parent figures” “derives not necessarily from a blood relationship but from the role the
parental adult plays in a child’s life.” In Lehr, the Court held that a biological father’s
constitutional rights were not violated by lack of notice as to his child’s adoption by the
biological mother’s husband where the father had never had any significant relationship with
the child. Lehr, 463 U.S. at 249-50. Lehr did not address the relationship between a child and
an adult parent figure.
¶ 54 Finally, Jim’s reliance on Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), in support of his contention that both parents and children have a fundamental
right to create and maintain family relationships is not well taken. In Danforth, the Court
addressed the constitutionality of Missouri’s abortion statute. Danforth, 428 U.S. at 62-63.
In holding unconstitutional the statute’s requirement that a minor obtain parental consent
before undergoing an abortion, the Court rejected the argument that the provision was
justified by the state’s interest in safeguarding the family unit. Danforth, 428 U.S. at 75.
Danforth said nothing about a right to create or to maintain family relationships.
¶ 55 In sum, as Jim concedes, he had no statutory standing to bring his claim for custody. Jim
has provided, and our research has revealed, no apposite Illinois case law recognizing
common-law standing to petition for same. Thus, assuming arguendo that the relevant
statutes do not supplant the common law, there simply is no Illinois common law to support
Jim’s position. Accordingly, because Jim lacks standing under the Dissolution Act and the
Parentage Act of 1984, we affirm the trial court’s order denying count I of his petition.
¶ 56 Jim also argues that the trial court erred in dismissing count II, seeking a determination
of child support, because it was properly pleaded and not contingent on any statute or finding
-17-
of parentage. Under the trial court’s order, Jim is not subject to paying child support. Jim’s
reliance on M.J. is misplaced. At best, under M.J., Maria could bring a common-law claim
for child support. However, that has not happened. Accordingly, Jim’s argument is without
merit.
¶ 57 Jim finally urges that the dismissal of counts III through VI was erroneous because they
were properly pleaded and not contingent on a statute or a finding of parentage. Our review
of a trial court’s section 2-615 dismissal is de novo. Rajterowski v. City of Sycamore, 405 Ill.
App. 3d 1086, 1092 (2010). Although counts III through VI all sounded in contract, the relief
sought was custody, visitation, and child support determinations. See Wabash County v.
Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 932 (2011) (stating that the
substance of a pleading is controlling, not its title). Accordingly, these claims are defeated
by Jim’s lack of standing, and we affirm the trial court’s dismissal. See In re Marriage of
Murphy, 359 Ill. App. 3d 289, 300 (2005) (we can affirm dismissal for any basis supported
by record, regardless of trial court’s reasoning).
¶ 58 For the foregoing reasons, the judgment of the circuit court of Du Page County is
affirmed. Given our disposition, our stay of the trial court’s February 29, 2012, order
vacating all previous orders for visitation and counseling is hereby lifted.
¶ 59 Affirmed.
-18-