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Cohabitation poses more challenges in custody disputes

With more couples choosing not to marry, courts are facing some interesting challenges in custody cases. The question is not about the unmarried couple's children, but children from previous marriages that the partners bring into their new relationship. Parents have rights; stepparents have some rights. Whether parents' partners have rights, though, is something that courts are still grappling with.

For example, Illinois law has particular rules about stepparents' roles in custody battles, hinging, for the most part, on whether a parent has physical custody of the child. And "physical custody" means something different from actual physical possession of the child. Courts must look at a number of factors to determine if the nonparent can even ask for custody.

A recent case outside of Illinois has cleared up one family's questions, though the facts are more complicated than a "typical" custody situation. On behalf of a divorced couple's daughter, the child's father asked the court for an order for protection against the mother's live-in boyfriend. The father believed the boyfriend had tied the child up with a belt.

The family court dismissed the case because the boyfriend was neither a parent nor a stepparent. He was, in the court's words, a "quasi-stepparent." As such, he and the child had no legal relationship or blood relationship.

In cases like this, the court will often appoint a guardian ad litem to represent the child. When the court dismissed the case, this child's guardian appealed. No, the guardian said, there was not a legal or blood relationship between the boyfriend and the child, but there was an "intimate relationship," and that state's laws specifically granted the family court jurisdiction over someone in an intimate relationship with the child.

Not just any intimate relationship, though. The court must look at a set of factors to see if the relationship qualifies -- factors that we will discuss in our next post.

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

Our firm works with families with custody issues like the one we discussed above. If you would like to learn more about our practice, please visit our Libertyville, Illinois, child custody page.

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