In response to issues surrounding the rights of a step parent as to step children after the death of the custodial parent, the Illinois legislature adopted Public Act 90-782, effective August 14, 1998. A step parent has been given the right to Petition the Court for custody of a step child or an award of specific visitation if all six of the following conditions are met:
- The child is at least 12 years old
- The custodial parent and stepparent were married for at least five years during which the child resided with them
- The custodial parent is deceased or is disabled and cannot perform the duties of a parent to the child
- The stepparent provided for the care, control, and welfare of the child before the initiation of custody proceedings
- The child wishes to live with the stepparent
- It is alleged to be in the best interest and welfare of the child to live with the stepparent as provided in section 602 of the IMDMA (The presumption that it is in the best interest of the child to have the natural parent get custody of the minor in a custody dispute involving a stepparent will stand, unless the stepparent rebuts the presumption.)
This new law by no means guarantees that a step-parent will be awarded custody after death or severe disability of his/her spouse, but it does allow the Court to review whether vesting custody with the natural parent or step-parent is in the best interest of the child. There is a strong presumption that the natural parent is the appropriate parent to have custody, but this presumption can be overcome by the step-parent with a strong set of positive facts. The Court likewise can now award specific visitation periods after the death of a spouse to a step-parent with a step-child.