The Illinois Supreme Court has agreed to review a custody battle between a woman who adopted her daughter from Slovakia and her ex-fiance who acted as the child’s father figure until the couple’s estrangement.

The one of two appeal petitions the high court accepted this week has the potential to shake up the family law field at a time when legislators are looking to modernize statutes, and courts are grasping for ways to deal with a rise in non-traditional families.

Acting on orders from the high court to reconsider its 2012 decision In re Parentage of Scarlett Z.-D., the 2nd District Appellate Court in May partially reversed a trial court’s decision to throw out the man’s attempt to gain joint custody of the child.

The case was re-evaluated in light of the high court’s 2013 ruling in DeHart v. DeHart, in which it for the first time recognized the concept of equitable adoption. In the probate context, that doctrine essentially acknowledges a person’s intent to provide for a child but does not create the same legal bond as that between a parent and child.

In DeHart, the court declared equitable adoption existed because a now-deceased man had told the plaintiff he was the man’s biological child and, later, that he had been legally adopted, yet in fact the man never took such action.

Similar to the decision rendered by the 1st District Appellate Court earlier this year in In re Marriage of Miki Loveland Mancine and Nicholas F. Gansner, 2014 IL App (1st) 111138–B, the case was reconsidered in light of the high court’s 2013 ruling.

The 2nd District, meanwhile, acknowledged that accepting equitable adoption in a custody context could have different side effects than in a probate case, saying that “if an equitable adoption were recognized, an ongoing legal relationship between the child and the third party would result — with all of the potential, and perhaps unintended, legal consequences flowing therefrom.”

The court was unwilling to abandon the idea completely, though.

The panel noted that extensive fact-finding at the trial level had already shown the man financially and emotionally supported the adoption process — even if he never completed the process of adopting the child himself.

He lived with the woman and child for a time and claims he tried to initiate discussions about full, legal adoption.

Still, the court refused to determine whether equitable adoption applied without giving the trial court another chance to find “clear and convincing” evidence.

“A trial court does not make factual findings in a vacuum,” the opinion says.

“A trial court makes its factual findings in the context of the pleadings, the evidence, and the parties’ arguments. Prior to DeHart, and absent any argument from the parties, the trial court did not have the opportunity to evaluate the evidence with equitable adoption in mind.”

The 26-page 2nd District decision was authored by Justice Kathryn E. Zenoff, with Justice Ann B. Jorgensen concurring and Justice Robert D. McLaren specially concurring in part and dissenting in part.

It partially affirmed and partially reversed a decision from DuPage County Associate Judge Timothy J. McJoynt.

In his special concurrence, McLaren argued the clear and convincing evidence standard was too high of a threshold in this particular custody context.

That level of evidence should be reserved for cases such as DeHart, where one of the parties is deceased.

The court proceedings coincide with an ongoing effort at the Statehouse to modernize the Marriage and Dissolution of Marriage Act, the Parentage Act and other statutes related to family law in order to better account for same-sex relationships and artificial insemination.

David W. Schopp, a sole practitioner from Aurora who represented the woman in the case, said he was somewhat surprised to find out the high court accepted the case after refusing to consider Mancine. In that case, the 1st District said equitable adoption did not apply to custody scenarios.

He said the 2nd District was right — in the sense that it said applying equitable adoption to custody could have some unintended consequences.

“I think it would be a detriment to the institution of marriage,” Schopp said.

“If you can become the parent of a child without being the biological parent, and without being the equitable parent, and without being a step-parent and without marrying the legal parent, that opens up a whole new can of worms. Why get married?”

Keith E. Roberts Jr., owner of Roberts P.C. in Wheaton who represented the man in the case, could not be reached for comment.

The case is In re Parentage of Scarlett Z.-D., No. 117904.