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Cohabitation poses more challenges in custody disputes, p. 2

Once burned, twice shy? Research has shown that the divorce rate for second marriages is much higher than the divorce rate for first marriages. In fact, almost two out of three second marriages will end in divorce. Is that one of the reasons people choose to cohabitate the second time around? In the end, the answer may be both unknowable and beside the point.

As we said in our last post, the issues that come up between adults who are cohabiting can be addressed with legal contracts or cohabitation agreements. More complicated are the issues that come up with one partner's child and that child's other parent. Custody arrangements can fly out the window when a parent's partner is a source of conflict, because a live-in boyfriend or girlfriend is not a stepparent by law. Courts are just beginning to find their ways through these issues.

We were discussing a case that started with a complaint by a father on behalf of his young daughter. He asked the family court for an order for protection against the mother's live-in boyfriend. The family court could not hear the case, it said, because the boyfriend was not a stepparent and was not a blood relation. The law simply did not contemplate someone with his status being a party to a family court matter.

The child's court-appointed attorney argued to the court of appeals that the boyfriend did have a legal relationship with the child. That state's law -- this wasn't in Illinois -- said the family court had jurisdiction over people who had an "intimate relationship" with the child.

A number of factors prove that an intimate relationship exists, the attorney continued. First, the boyfriend and the mother had lived together for three years. Second, the boyfriend acted like the daughter's parent when the girl was in her mother's custody. This time, the court agreed: There really is something called a quasi-stepparent.

The court understood that each case will be unique, depending on the particulars of the partner's relationship with the child (or children). Commentators understand that there may be very few cases where application of the rule would be appropriate. But we know from experience that one case in another state can influence our state's approach to family law matters.

Source: Thomson Reuters News & Insight, "Child has legal ties to mom's live-in partner: court," Jessica Dye, Sept. 26, 2012

Families like the one in this post come to our firm for help with child custody and visitation matters. Please visit the child custody page of our website to find out more about our Libertyville/Lake County practice.

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