2017 IL App (4th) 170001
Ill. App. Ct.2018Background
- Petitioners Crystal and Michael Young (paternal grandmother and her husband) filed in Dec 2015 to establish custody (allocation of parental decision-making) of J.H., Crystal’s granddaughter, alleging J.H. had lived primarily with them since infancy and was removed by J.H.’s mother, respondent Kourtney Herman.
- The trial court entered an emergency order returning J.H. to the Youngs’ care, later modified to allow limited visitation by Kourtney; multiple extensions followed pending litigation.
- Kourtney moved to dismiss under section 2-619.1 arguing the Youngs lacked statutory authority to proceed because J.H. was in the physical custody of a parent when the petition was filed; the court deferred ruling and held a multi-day bench trial on standing and best interests.
- Evidence showed J.H. spent most nights with the Youngs for many years; the Youngs paid for and arranged preschool, medical care, extracurriculars, and daily care; Kourtney sometimes had J.H. in her home more recently and had a suspended license and past DUI conviction; there were incidents of intoxication and a hostile confrontation in Oct 2015 when Kourtney allegedly took J.H. from the Youngs.
- The guardian ad litem observed J.H. viewed both homes as family and recommended shared involvement; the trial court found the Youngs had been primary caregivers and that Kourtney had voluntarily and indefinitely surrendered parenting duties.
- The trial court awarded the Youngs primary decision-making authority and limited parenting time to Kourtney; Kourtney appealed.
Issues
| Issue | Plaintiff's Argument (Young) | Defendant's Argument (Herman) | Held |
|---|---|---|---|
| Whether a nonparent may file under §601.2 when a parent had physical custody at filing | Young: Requirement is an element to be pleaded and proven by petitioner; the Youngs made that showing | Kourtney: J.H. was in the physical custody of her parent when petition filed, so petition barred for lack of standing | Court: The §601.2 physical-custody limitation is an element of the petitioner’s cause of action (not traditional standing); court found Youngs proved parents had voluntarily relinquished custody and Kourtney did not have physical custody at filing |
| Whether the trial court erred in denying motion to dismiss for lack of standing and by mixing standing and merits in one hearing | Young: Kourtney waived a standing defense by timing; in any event Youngs proved the statutory element at trial | Kourtney: Motion to dismiss should have been granted; combining issues prejudiced her | Court: No reversible error — limitation is an element to prove, so combining hearing was permissible; standing-waiver argument unnecessary because element must be proven by petitioner |
| Whether awarding primary decision-making to Youngs was against J.H.’s best interests | Young: Prior arrangement provided stability; Youngs were primary in past decision-making | Kourtney: Trial court ignored statutory limits, considered improper evidence, misweighed factors, and misassessed credibility | Court: Trial court considered statutory best-interest factors, credited Youngs’ caretaking and stability, and the allocation was not against manifest weight of the evidence |
Key Cases Cited
- In re R.L.S., 218 Ill. 2d 428 (interpretation that nonparent must show child not in physical custody of a parent)
- Glisson v. City of Marion, 188 Ill. 2d 211 (standing doctrine and burden to plead affirmative defense)
- In re A.W.J., 197 Ill. 2d 492 (describing nonparent ‘standing’ under §601 as a threshold statutory requirement, not traditional standing)
- In re Petition of Kirchner, 164 Ill. 2d 468 (discussing custody/physical custody concepts under Dissolution Act)
- In re Custody of Peterson, 112 Ill. 2d 48 (nonparents must show child not in physical custody of a parent)
- In re Custody of McCuan, 176 Ill. App. 3d 421 (treating §601 requirement as element petitioner must prove)
- In re Marriage of Ricketts, 329 Ill. App. 3d 173 (standard of review for physical custody findings)
- In re Custody of M.C.C., 383 Ill. App. 3d 913 (physical possession does not equal physical custody)
- In re Custody of Ayala, 344 Ill. App. 3d 574 (voluntary and indefinite relinquishment supports finding of nonparent custody)
- In re Marriage of Feig, 296 Ill. App. 3d 405 (cases interpreting physical-custody threshold)