By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.

1. Woman in long-term same-sex relationship had standing to pursue a petition to adjudicate parentage of two minor children.Petitioner, a woman,who was in a long-term relationship with another woman who gave birth to two children (birth mother) via artificial semination during their relationship, filed a petition to adjudicate parentage and for parenting time after the birth mother no longer permitted her to see the children.  The Petitioner had not formally adopted the children during the relationship and therefore, the birth mother filed a motion to dismiss her petition for lack of standing.  The trial court granted the motion to dismiss and the Appellate Court reversed finding she had standing under a number of provisions of the Parentage Act. Section 602 of the Parentage Act specifically addresses who has standing to bring a petition to adjudicate parentage and includes “a woman presumed or alleging herself to be the parent of the child.”  The Court noted that the statute grants standing broadly to a woman presumed or alleging herself to be the parent of a child and that the petitioner alleged she was involved in selecting a donor, the artificial insemination process, the pregnancy, and the raising of the children – all which support her allegations she is a parent.  Further, Section 602(g) grants standing to a person who has provided financial support to a child, and her petition set out numerous expenses she had paid for or contributed to for the children.  Finally, she had standing under Section 602(k) as an intended parent as someone who entered into a reproductive technology arrangement as the term “arrangement” means a measure taken or plan made. The petitioner alleged she had planned to, and multiple times asked, to adopt the two children, but that the birth mother refused despite agreeing for her to do so when she was pregnant.  The Courtclarified that it was only opining on the issue of standing, not deciding the case on the merits and remanded to the trial court for further proceedings.  In re Parentage of D.F and J.F.2024 IL App (1st) 231784.

   In re Parentage of DF and JF

2. Twenty-seven year old judgment not void for lack of jurisdiction.This appeal concerns a husband’s petition to terminate monthly payments to wife under a 1992 dissolution judgment.  The payments were wife’s portion of husband’s Army disability retirement pay and Veteran’s Administration disability benefits. Wife filed a motion to dismiss husband’s petition which the trial court granted and the Appellate Court affirmed.  Husband’s argument on appeal was that the trial court lacked subject matter jurisdiction back in 1992 to divide husband’s federal military benefits, making that portion of the judgment void and unenforceable.  Whether an order is void is a question entirely of jurisdiction and because the circuit court had subject matter jurisdiction of the matter when the case was filed in 1990, and because there is no facially unconstitutional statute at issue, the judgment is not void.  There was a dissenting opinion which framed the issue as not whether the court had subject matter jurisdiction, but whether the trial court now had the power to enforce a judgment which contains a provision prohibited under federal law.  Because federal law preempts conflicting state law, and because military disability benefits may not be considered marital assets by the court in a divorce, the dissenting opinion argued the trial court erred by enforcing a judgment which was contrary to federal law.  In re Marriage of Tronsrue, 2024 IL Ap (3d) 220125.

   In re Marriage of Tronsrue

3. Filing a motion to reconsider does not toll the time to file a notice of appeal.In this post-judgment appeal, husband filed a motion to terminate maintenance based on wife’s alleged cohabitation.  Wife moved to transfer the case from Will County to Grundy County, which the trial court denied.  Wife filed a motion to reconsider which was also denied.  Wife then filed her notice to appeal claiming that the Appellate Court had jurisdiction under Rule 306(a)(4) which provides a party may request leave to appeal from an order granting or denying a motion for a transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by plaintiff.  However, wife did not file her notice of appeal 30 days after the trial court denied her motion to transfer, but waited until after the motion to reconsider had been ruled upon.  A motion to reconsider does not toll the timing for filing a petition for leave to appeal.  Therefore, the Appellate Court lacked jurisdiction to hear the appeal. In re marriage of Likar, 2024 IL App (3d) 240103.

   In re Marriage of Likar

4. Trial court’s finding that wife was not cohabitating on a resident, continuing, conjugal basis reversed.  The Third District has reversed a trial court’s ruling and held that wife was not residing with her boyfriend on a resident, continuing, conjugal basis.  After extensive testimony over a 4-day hearing, where wife’s boyfriend had testified that at the time of the hearing he and wife were no longer dating and he was in a relationship with another woman, the trial court determined that wife was not cohabiting after evaluating each of the Herrin factors.  The couple had been dating for three and a half years, spent a large amounts of time together, celebrated holidays together, vacationed together, and spent a significant amount of time with each other’s families, notably all of their respective children.  There was no evidence that the couple had any intermingled financial dealings.  But the Appellate Court gave great weight to each of their involvement in the other’s families and the fact that they attended each other’s children’s sporting events, talent shows, and were present on special occasions.  Their children stayed overnight at each other’s homes, and they traveled together for out of town sporting events.  The Court stated “This willingness to involve both families suggests mutual commitment if not permanence.”  Based on the totality of the circumstances, that while the relationship existed, it was a de facto marriage.  In re Marriage of Miller, 2024 IL App (3d) 230098.

   In re Marriage of Miller