State childcare parentage laws, that is, laws designating parents for custody, visitation, parental responsibility allocation, parental decisionmaking and/or support purposes, have evolved dramatically in the past half century. The (r)evolution is due to major changes in both reproductive technologies and human conduct. Yet the (r)evolution is incomplete.

The (r)evolution is especially incomplete in Illinois. Recent statutory amendments in Illinois chiefly reflect the work of the National Conference of Commissioners on Uniform State Laws in its 2000 model Uniform Parentage Act, not its 2017 Uniform Parentage Act. The latter better addresses the effects on childcare parentage of the changes in both reproductive technologies and human conduct. As well, the latest Illinois statutes do not reflect the NCCUSL's 2018 model Uniform Nonparent Child Custody and Visitation Act which also address the changes in the ways in which American families are formed and reformed by expecting and existing legal parents. Finally, the 2019 draft of the American Law Institute Restatement of the Law on Children and the Law has only recently been available to Illinois lawmakers.

Any (r)evolution in Illinois childcare parentage laws should not be fully fueled by the NCCUSL or ALI pronouncements. While a few other states have substantially embraced the 2017 UPA, it embodies certain public policy choices over which lawmakers can quite reasonably differ. As well, the 2017 UPA presents significant constitutional challenges.

Parentage law (r)evolution in Illinois is chiefly the responsibility of the General Assembly. When asked to develop broad childcare parentage norms, the Illinois Supreme Court unanimously deferred, finding the complex issues merit broad “policy debate” in the General Assembly.

Illinois legislators will be challenged when contemplating new parentage laws. The laudable goals of promoting certainty, recognizing the import of *912 blood ties, furthering children's best interests, respecting family members' wishes, protecting parental rights, and enhancing public welfare often cannot be simultaneously pursued. Yet the General Assembly must act. Neither Congress nor the United States Supreme Court is likely to soon demand more national uniformity on parentage. Thus, as with many other family law matters (like marriage dissolution, heirs in probate, and standing to sue in tort), lawmaking on childcare parentage will substantially remain for state lawmakers.

This Article first briefly notes some recent significant changes in technology and human conduct impacting legal parentage. Then it examines the federal constitutional boundaries on state childcare parent laws. Next it explores the diverse array of models, statutes and precedents on childcare parentage now operating outside of Illinois. Then it looks at current Illinois parental childcare laws. Finally, the Article elaborates on some of the key questions facing Illinois legislators when considering new childcare parentage norms.

First Page


Included in

Family Law Commons