Young v. Herman
92 N.E.3d 1070
| Ill. App. Ct. | 2018Background
- In Dec. 2015 Crystal and Michael Young (grandparents) filed a petition under 750 ILCS 5/601.2 to allocate parental decision-making for J.H., Crystal’s granddaughter, alleging they had cared for her since infancy and that mother Kourtney Herman recently removed J.H. from their care.
- The trial court entered an emergency protective order returning J.H. to the Youngs, later modified to allow limited visitation for Kourtney; the Youngs then sought primary decision-making authority and parenting-time allocations.
- Kourtney moved to dismiss under section 2-615 and 2-619.1, arguing the Youngs lacked standing because J.H. was in Kourtney’s physical custody when the petition was filed.
- The guardian ad litem observed J.H. spent substantial time with both households and recommended shared involvement; evidence at multiple hearings showed the Youngs provided day-to-day care, education, medical care, transportation, and financial support for years, and that Kourtney had voluntarily "coparented" with the Youngs since 2007.
- The trial court found the Youngs credible, concluded Kourtney had voluntarily and indefinitely relinquished parental duties for years (so J.H. was not in Kourtney’s physical custody at filing), awarded the Youngs primary decision-making responsibility and set parenting time for Kourtney.
- On appeal Kourtney challenged denial of the motion to dismiss and the best-interests decision; the appellate court affirmed, agreeing the custody threshold is an element the nonparent must plead and prove, and that the trial court’s findings were not against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument (Young) | Defendant's Argument (Herman) | Held |
|---|---|---|---|
| Whether a nonparent petition under §601.2 may be filed when a parent had physical custody at filing | Youngs: petition valid because J.H. had been "yanked" from their long-term care and parents had effectively relinquished custody; physical possession at filing is not dispositive | Kourtney: petition should be dismissed because J.H. was in her physical custody when petition filed, so nonparents lack authority to file | Court: The statutory "not in physical custody" rule is an element of the petitioner’s claim (not traditional standing); trial court correctly found J.H. was not in Kourtney’s physical custody given long-term relinquishment and facts were not against manifest weight |
| Meaning and proof of "physical custody" under §601.2 | Youngs: evidence shows parents voluntarily and indefinitely relinquished parental responsibilities (day-to-day care, schooling, medical) so Youngs had de facto physical custody | Kourtney: physical custody exists because she had physical possession around filing (recently took child back) | Court: Physical custody is a multi-factor inquiry (responsibility, manner acquired, nature/duration); mere momentary possession is insufficient; affirmed trial court finding of nonparental standing element met |
| Whether trial court erred by addressing standing and best-interests together / procedural waiver | Youngs: Kourtney waived standing defense by timing; even if not, merits support outcome | Kourtney: combining/late-raising standing confused and prejudiced her defense | Court: Treats the custody-threshold as an element to be proven; did not rely on waiver and addressed merits; no reversible error found |
| Whether awarding primary decision-making to Youngs was against manifest weight (best-interests) | Youngs: evidence of long-term primary care, stability, involvement in education/medical and child preference favored Youngs | Kourtney: trial court considered improper evidence and failed to weigh unfavorable evidence; argued error in credibility findings | Court: Trial court considered statutory best-interest factors, credited witnesses favoring Youngs, concerns about Kourtney’s alcohol/smoking and stability supported allocation; decision not against manifest weight |
Key Cases Cited
- In re R.L.S., 218 Ill. 2d 428 (interpretation that nonparental petition requires proof child not in physical custody of parent)
- In re Petition of Kirchner, 164 Ill. 2d 468 (discusses limits of custody under the Dissolution Act)
- In re Custody of Peterson, 112 Ill. 2d 48 (nonparents must show child not in physical custody of a parent before court can act)
- In re A.W.J., 197 Ill. 2d 492 (clarifies that the §601 custody limitation is a statutory threshold element, not traditional standing)
- In re Custody of McCuan, 176 Ill. App. 3d 421 (explains petitioner’s burden to show child not in parent’s physical custody)
- In re Custody of M.C.C., 383 Ill. App. 3d 913 (physical possession at filing does not necessarily equal physical custody)
- In re Marriage of Ricketts, 329 Ill. App. 3d 173 (standard of review: custody findings overturned only if against manifest weight of the evidence)