Lead Opinion
delivered the opinion of the court:
This appeal involves a decision by the circuit court of Macon County awarding custody of Christy Elizabeth Townsend, a minor, to her half-sister, Brenda Poling, over the claim of Christy’s natural father, Gary Townsend. The appellate court reversed and remanded with directions that custody be granted to Gary Townsend. (
That art does imitate nature may be illustrated by the remarkable circumstances of this appeal. During a period
Townsend’s and Salmons’ living arrangement lasted for only three months, and with his wife assenting, he moved back into their family home in Shelbyville. Despite this separation from Dorothy, Gary continued to see her on a regular basis. As she was approaching the end of her pregnancy, Townsend received a phone call from her stating that she was in labor. He drove her to the hospital, where he acknowledged paternity and the child was named Christy Elizabeth Townsend. Upon leaving the hospital, Dorothy took custody of Christy and for a period of two years lived at what had been the Poling home with her 19-year-old daughter, Brenda Poling, who two months before Christy was born gave birth to an illegitimate baby girl, Courtney.
The record shows that Townsend, with his wife’s knowledge, visited Dorothy and Christy two to three times a week during this period and that on many occasions he and
Immediately after Dorothy’s conviction, Townsend attempted to learn where Christy was living. Though it appears he knew that Brenda had custody of the child, he seemingly did not know that Brenda, along with Christy and Courtney, had moved in with her father, George Poling. When he asked the State’s Attorney’s office for assistance in locating his daughter, Townsend testified that he was told only that she was being well cared for. On May 30, 1979, he filed a petition in the circuit court of Macon County alleging that, given the circumstances of Dorothy Salmons’ conviction, it was in Christy’s best interests that he be granted care, custody and control of his child. Brenda Poling, upon receiving the petition, filed a petition for leave to intervene, which on June 28 was granted. In her petition she alleged that Townsend was unfit to care for Christy;
Townsend’s witnesses described him as a loving father who held a steady and well-paying job as a press operator with a substantial employer. He had been regularly attending church services in Shelbyville and participated in many church activities. Particular emphasis was placed upon the relationship between Townsend and his son Alan, which was described as excellent. Witnesses describe Alan as a normal, well-behaved and intelligent boy who loved and respected his father. It was testified that Alan had handled the death of his mother surprisingly well. Townsend stated that despite the fact that Christy’s natural mother had killed his mother, Alan was looking forward to Christy’s living
Considering this and other testimony, the trial judge, though finding that both Townsend and Brenda were fit to care for Christy, held that it was in her best interests that custody be awarded to Brenda.
The above is an outline of the testimony presented at the hearing. It has not been necessary to point out all of the testimony presented or to detail it because of our conclusion that the trial court did not apply and give appropriate consideration to the relevant standards in awarding custody of Christy to her half-sister over the claim of her natural father.
In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. (See People ex rel. Edwards v. Livingston (1969),
Here, of course, the proceeding does not involve a custody dispute incident to a divorce or an adoption proceeding, nor is the Juvenile Court Act applicable, which would require that the minor child be found to be delinquent, in need of supervision, or neglected or dependent before the child could be taken from the custody of its parents and made a ward of the State. See Ill. Rev. Stat. 1979, ch. 37, par. 702 — 1.
The right and correlative responsibility of a parent to care for his or her child is fundamental and as ancient as mankind. This basic human right and the superior-right doctrine find legislative expression in the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110/2, par. 1 — 1 etseq.). Under article XI, entitled “Minors and Incompetents,” section 11 — 7 provides:
“If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers,rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.” Ill. Rev. Stat. 1979, ch. 110/2, par. 11 — 7.
This court has acknowledged the operation of the superior-right doctrine within the context of the best-interests standard under this statutory provision. People ex rel. Edwards v. Livingston (1969),
In a decision interpreting this section of the probate act, it was held that, in a custody dispute between a natural parent and a third person, the latter must demonstrate a “compelling reason” why the natural parent should not be granted custody of a child. (Cebrzynski v. Cebrzysnki (1978),
This court’s decision in People ex rel. Edwards v. Livingston (1969),
In Livingston the conduct of the father was radically distinguishable from the conduct of Townsend. The father there showed a complete indifference to his child’s well-being. In that case there was a dispute between the natural father and the maternal grandfather of a 12-yearold boy, Roy, who was born in 1955. When he was 17 months old the father, Robert Edwards, left him with his mother. Up to that time the family had been living in the home of the mother’s father, Alvin Livingston. There was no communication between Edwards and his wife until 1958, when he was granted a divorce on the grounds of desertion and adultery. The court ordered that Edwards pay $10 a week in child support, which he never paid. For the next nine years both the boy and his mother continued to live in her father’s house. Edwards, during this time, never visited his son and sent him only one letter. It was not until 1967, when he attended the funeral of his former wife, who had died in July of that year, that he was re-introduced to his son. In September, Edwards filed a petition for writ of habeas corpus seeking custody of Roy from the child’s grandfather. Edwards argued, relying upon the above-quoted provision of the probate act, that his right to the custody of Roy as his natural parent could not be overcome by Livingston unless he were found unfit or to have forfeited his right to custody. The court disagreed and held that “it is not necessary that the natural parent be found unfit or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent. See Giacopelli v. Florence Crittenton Home,
“The appellee made no effort to visit his child after leaving the appellant’s home until his wife died in July 1967, even though he never lived a greater distance than 30 miles from the boy. During the period from 1956 to 1967, the appellee never contributed to the support, education and welfare of the child. The record indicates that the appellee showed no interest in the welfare of the child for over 11 years and never assumed any of the responsibilities of a parent. The boy and he were strangers to each other. The child was apparently happy, well adjusted and had been properly developing in the environment of appellant’s home. He had established, within limitations, a father-son relationship with the appellant. The evidence showed that the appellant’s home afforded affection, understanding, guidance, security and a generally wholesome atmosphere. Dr. Cripe, the child psychiatrist, expressed the opinion that to remove the child from his environment would have a detrimental effect on his emotional and psychological well being.”42 Ill. 2d 201 , 210-11.
The Supreme Court has recognized the primacy of a natural parent’s right to the custody of the child. In Stanley v. Illinois (1972),
“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper [(1949),336 U.S. 77 , 95,93 L. Ed. 513 , 527,69 S. Ct. 448 , 458] (Frankfurter, J., concurring).
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska [(1923),262 U.S. 390 , 399,67 L. Ed. 1042 , 1045,43 S. Ct. 625 , 626], ‘basic civil rights of man,’ Skinner v. Oklahoma [(1942),316 U.S. 535 , 541,86 L. Ed. 1655 , 1660,62 S. Ct. 1110 , 1115], and ’[r]ights far more precious . . . than property rights,’ May v. Andersen [(1953),345 U.S. 528 , 533,97 L. Ed. 1221 , 1226,73 S. Ct. 840 , 843]. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts [(1944),321 U.S. 158 , 166,88 L. Ed. 645 , 652,64 S. Ct. 438 , 442].”405 U.S. 645 , 651,31 L. Ed. 2d 551 , 558-59,92 S. Ct. 1208 , 1212-13.
The trial judge erred at the very outset of the hearing in stating what would be the burden of Gary Townsend, Christy’s father. Townsend’s lawyer had argued to the court that a natural parent has, under our law, a superior right to custody and that a third person claiming custody would be required to show reason or cause why the child’s best interests would be served by awarding custody to the third person. The trial judge’s response was that that would be so only if the child was not in the custody of Brenda. It was clear that Christy was in the custody of Brenda, and the trial court held erroneously that the burden was on Townsend, the father. During argument at the conclusion of the hearing, the attorney who had been appointed by the court to represent the interest of Christy stated that where there had been no prior determination of the right to custody, neither the parent nor the other party had the burden of proof. The trial judge thereupon said: “I believe there is an equal burden” with respect to Brenda and Gary Townsend. This, too, was erroneous, as failing also to give appropriate
It is obvious that in a custody dispute a court should give weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. (See generally Halstead v. Halstead (1966),
Unlike what would be true in the case of a custody dispute incident to a dissolution-of-marriage proceeding, the parties here did not start out on equal footing. The burden was on Brenda to establish good cause or reason to overcome the presumption that Townsend, as the natural father, had the first and superior right to the custody of his daughter. The trial court erred in failing to give this appropriate consideration.
For the reasons given, the judgments of the appellate and circuit courts are reversed and this cause is remanded to
Reversed and remanded.
Concurrence in Part
concurring in part and dissenting in part:
I find no good reason to further delay resolving Christy’s custody by remanding this case for further hearings in the circuit court. Nor do I think it is in Christy’s best interest to subject her to the “sometime pace of our judicial process” (as the majority puts it) (
The majority suggests the importance of determining whether Gary’s wife would welcome Christy into the new family group. I think this is answered by the fact that Gary has continued to seek Christy’s custody after his remarriage by appealing this case to the appellate court and resisting Brenda’s appeal to this court. It is unlikely that he would be persisting in this litigation if Mrs. Townsend objected to Christy becoming a part of her family.
The changes in Gary’s life brought on by his remarriage appear to have improved his fitness to raise Christy. Brenda emphasized in this court as well as in the circuit and appellate courts that if Gary was given custody there would be a strained relation between his son Alan and Christy when they lived only with Gary, for Alan would resent the fact that Christy’s mother had murdered his mother. Whether such resentment would develop is a matter of speculation; it is, in my judgment, less likely now that Christy and Alan would be living with a new mother figure (the new Mrs. Townsend) and her two minor children. I feel this setting is better for Christy than either living only with Gary and Alan or being taken care of by her mother’s present and former husband, George Poling, and other relatives while the half-sister, Brenda, is at work.
This case has been in the courts since Christy was 2ii years old. In her best interest I think now is the time to end it by an order awarding custody to her natural father.
I might add that this case has arisen because of a deficiency in the statutes. The superior right of a natural