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Federal Constitutional Childcare Interests and Superior Parental Rights in Illinois

33 Northern Illinois University Law Review 305, 2013

50 Pages Posted: 14 Dec 2012 Last revised: 13 Jun 2013

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: December 13, 2012

Abstract

Even without a majority rationale, the opinions in Troxel v. Granville, 530 U.S. 57 (2000), support the notion that there are federal constitutional “liberty interests of parents in the care, custody, and control of their children” which generally foreclose state – compelled nonparent childcare over parental objections. They also recognize there can be exceptions, including perhaps when parental wishes are accorded “at least some special weight;” when “harm or potential harm” to children may ensue; when there are already “substantial relationships” between children and nonparents; or when states legitimately seek to preserve “established familial or family-like bonds.” As well, the opinions recognize that definitions of parenthood can include, at times, those without biological or adoptive ties.

In Illinois, as elsewhere, the Troxel interests of parents are protected by the “superior rights doctrine.” The doctrine appears in both statutes and case precedents as do its increasing exceptions. The doctrine is also increasingly unavailable to some biological and adoptive parents because new forms of parenthood are recognized, expanding those with superior rights under Troxel. Such new parentage forms can have different labels, like de facto parent; equitable parent; parentage by estoppel; and, psychological parent.

The article describes current Illinois statutes and precedents on both superior rights exceptions and parentage definitions. It examines the facts of In re Marriage of Mancine, 2012 IL App (1st) 111138, a childcare dispute between an adoptive parent and a former stepparent after comparing current Illinois policies with the policies in other American states.

The article concludes with recommendations for further exceptions and new parentage definitions. It finds incomplete the proposals of the Illinois Family Law Study Committee, a General Assembly appointee whose suggestions will very likely be significantly debated in 2013. In particular, the article focuses on preferred approaches taken in other states and changes to Illinois laws on voluntary parentage acknowledgments, family relations contracts and guardianships.

Keywords: federal, constitutional, privacy, childrearing, parenting, child custody, child visitation, families, Troxel, superior parental rights, parentage, guardianships, voluntary parentage acknowledgement, family relations contracts, family/like bonds, parental liberty interests

Suggested Citation

Parness, Jeffrey A., Federal Constitutional Childcare Interests and Superior Parental Rights in Illinois (December 13, 2012). 33 Northern Illinois University Law Review 305, 2013. Available at SSRN: https://ssrn.com/abstract=2189092

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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