Legal Question in Family Law in Illinois

Giving up custody to a third party.

Your question speaks of custody, but also of giving up your rights to your child. These are two separate things. You can give up custody of a child without giving up your parental rights.

The interest of natural parents in the "care, custody and management" of their children is a fundamental liberty interest protected by the fourteenth amendment of the U.S. Constitution. If you have lawful custody of your child, you are permitted to place the child in the care of another person (subject to the issues described below). Parents do this all the time, e.g., babysitters, boarding schools, relatives, summer camps, etc. What you are describing in your question is a longer term placement. If such a placement is long enough, you may be deemed to have relinquished custody. That does not mean you have given up your parental rights.

When you place the child with your mother for a long-term period, the father can file for custody. His rights are superior to your mother�s, and indeed, she has no standing to seek custody until custody is given up by both you and the father.

In fact, long term placement of your child with another person (i.e., your mother) by both you and the father exposes your custodial arrangement to challenge by any third party. The provisions of Illinois� Marriage and Dissolution of Marriage Act expressly permit a person, other than a parent, to file a petition for custody if a child is "not in the physical custody of one of his parents." (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2).) In the interpretation of this section, our supreme court has held that a nonparent must show that the child is "not in the physical custody of one of his parents." When this requirement has been met, the nonparents will be considered for legal custody of the child under "a best interest of the child" standard.

The third party most likely to seek custody in such a case might be your mother. This is not a problem inasmuch as you wanted to give her custody anyway.

All of the above relates to custody, not parental rights. If you intend to permit your mother to adopt your child, you would have to give up your parental rights. This is permanent. It is also true that, for your mother to adopt, the father would either have to agree to relinquish his rights or his parental rights would need to be terminated for cause.