In re MARRIAGE OF JOHN CAREY, Petitioner, and CAROL CAREY, Respondent-Appellant (Mary Carey, Intervenor-Appellee).
Second District No. 2-88-0890
Second District
October 2, 1989
1040
Law Offices of William J. Stogsdill, Jr., P.C., of Wheaton (Andrew M. Carter, of counsel), for appellee.
JUSTICE LINDBERG delivered the opinion of the court:
Respondent, Carol Carey, the natural mother of the minor child, Brendan Carey, and the former spouse of Brendan‘s natural father, the deceased John Carey, appeals from the judgment of the circuit court of Du Page County finding in a modification of custody proceeding pursuant to
On August 1, 1964, John Carey (John) and Carol Carey (Carol) were married. Their marriage produced four children, Sean, Kathleen, Maureen and Brendan. In January 1980, Carol moved out of the marital residence in Wheaton, Illinois, and into an apartment, also located in Wheaton. The children lived with John in the marital residence. On September 14, 1981, the circuit court of Du Page County entered a judgment of dissolution of marriage which incorporated a settlement agreement entered between John and Carol. At the time of dissolution, Sean was 16 years old, Kathleen was 14, Maureen was 10 and Brendan was 6. The settlement agreement incorporated in the judgment of dissolution of marriage gave the care, custody and control of the children to John, with Carol having rights to reasonable visitation.
In the summer of 1980, John began dating Mary Carey (Mary). Mary spent considerable time with the children of John and Carol while dating John. In December 1981, Mary moved into John and the children‘s home, and John and Mary were married on January 15, 1982.
In 1984, John, who like Mary, worked for the Internal Revenue Service, was transferred to Washington, D.C. John petitioned the court to remove the children from Illinois to the Washington, D.C., area. On October 30, 1984, the circuit court of Du Page County entered an order by agreement of John and Carol which provided in
John, his wife Mary, and Brendan moved to a suburb of Washington, D.C., located in Fairfax County, Virginia. A mother-son relationship developed between Brendan and his stepmother, Mary. Carol exercised her rights to visitation with her son Brendan, including 18 overnight visits in 1984. The situation remained this way until 1987.
In the early hours of Saturday, October 24, 1987, John Carey died. John did not leave a last will and testament. That afternoon Mary and Carol talked by phone. Carol, a teacher in the Chicago public school system, expressed her desire to come to Virginia that evening to get Brendan. Mary did not intend to allow Brendan to go with Carol. Carol did not go to Virginia that Saturday.
Within a few days of John‘s death, Mary commenced proceedings in a circuit court for the county of Fairfax, Virginia, to obtain an order appointing Mary and Brendan‘s paternal grandmother, Ann Carey, guardians of Brendan. Mary‘s “Petition for Appointment of a Guardian” stated that Brendan, age 12, who had an estate of $500, had resided with his father, John, and his stepmother nearly six years, and in Fairfax County, Virginia, since 1984 and that John had died. The petition further stated that Carol Carey, a resident of Illinois, by an agreed order entered in the circuit court of Du Page County, Illinois, relinquished full legal custody of Brendan to John. The petition further stated that Brendan, the heir of his father‘s estate, wished to continue to reside with Mary in Virginia. The notarized petition was signed by Mary and Ann Carey. On November 13, 1987, the circuit court of Fairfax County, Virginia, finding Brendan without a guardian and in need of a guardian, entered an order appointing Mary and Ann Carey temporary guardians of Brendan and his estate. Carol was not given notice of these proceedings.
On November 8, 1987, in the circuit court of Du Page County, Carol petitioned for an emergency modification of custody pursuant to
Mary filed a petition to intervene and also sought leave to file a counterpetition for permanent custody of Brendan. Carol filed pleadings seeking to dismiss Mary and strike her petition to intervene based upon Mary‘s lack of standing under
Discovery schedules were set and eventually a trial date was set for July 27, 1988, on the issue of Brendan‘s best interests under
At trial, Mary, Carol, their respective experts and a court-appointed psychologist testified. The trial court held an in camera in-
Initially, we must address the confusing and inadequate nature of Carol‘s appellate brief. She has failed to comply with numerous requirements of
Rather than dismiss the appeal for failure to substantially comply with
The only issue sufficiently raised and argued on appeal is whether the nonparent, Mary, had standing under
Carol contends the trial court erred in finding that Mary had standing under
We agree with Carol that, in order to seek custody of a child under the modification of custody procedures of the Dissolution Act, a nonparent seeking custody must meet the standing requirements of
The superior rights of a natural parent to the care, custody and control of his or her child are well recognized in Illinois and embodied in our statutory law. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, 491 N.E.2d 1150, 1152.) Under the Juvenile Court Act
Before a nonparent may proceed under the best interests standard of the Dissolution Act (see
“A child custody proceeding is commenced in the court
* * *
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (Emphasis added.)
Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2) .
A determination of when a child is “not in the physical custody of one of his parents” so as to create standing in a nonparent seeking custody under the Dissolution Act is not subject to any clear litmus test or dependent upon any single fact such as who is in actual physical possession of the child at the time the petition for custody modification is filed. (See In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 527 N.E.2d 131.) In Santa Cruz, this court extensively reviewed the only Illinois Supreme Court decision, Peterson, to have addressed the standing issue as well as In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 440 N.E.2d 1036, and In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835, which were the two cases favorably cited and relied upon by the court in Peterson. Additionally, in Santa Cruz, we discussed the facts of the three other recent decisions that have applied the rationale of Peterson.
Although relevant factors for a determination of standing include the manner, nature and duration of physical possession, such factors must be applied within the statutory scheme of the Dissolution Act and the Child Custody Act incorporated therein, which evince twin policies favoring the superior rights of parents to the custody of their children and the fostering of greater stability in the home environment by deterring abductions and other unilateral removals of children. (See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 398, 453 N.E.2d 835, 838;
Similar to our holding in Santa Cruz is the holding of the Appellate Court, Third District, in In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733, which, after reviewing Peterson, Barokas and Menconi, stated “physical custody, as defined by
It has been held that the overnight visit by a child to a third party and that party‘s refusal to return the child to its custodial par-
In the instant case Carol, by the settlement agreement incorporated into the judgment of dissolution, gave permanent legal custody of Brendan, then age four, to John in 1981. Between 1982, after John‘s marriage to Mary, and 1984, prior to John, Mary and Brendan‘s move to Virginia, Brendan lived with John and Mary. Although Carol exercised visitation rights, Mary, as John‘s wife, undertook with John to provide for the care and welfare of Brendan. In 1984, Carol by an agreed order allowed John to retain permanent custody of Brendan and to move Brendan to Virginia, where Brendan‘s care, custody and welfare were provided by John and Mary. In 1987, when John died, a mother-son relationship existed between Mary and Brendan. Carol, although exercising her visitation rights, had not provided for the care, custody and welfare of Brendan in such a manner that, when John died, the trial court was required to find that physical custody as used in
The dissent filed in this case takes the position that because the facts in this case so closely parallel those in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150, Peterson requires us to find that Mary had no standing to seek custody of Brendan because it would not have occurred to Carol that Mary had physical custody of Brendan and was developing a position of standing.
We disagree. In Peterson the custody arrangement was determined by the court rather than by agreement of the parties; here, Carol had previously agreed to Brendan‘s permanent custody with John at a time when John was dating Mary. After John and Mary were married, Carol agreed to allow Brendan to move with John and Mary to Washington, D.C., where they continued to reside until John‘s death some five years later. During this time, Mary, as John‘s wife, was an integral part of the family unit in which Brendan lived. It is apparent from the evidence that for five years, Brendan enjoyed a mother/son relationship. Although the grandparents in Peterson provided a home and helped their ailing daughter care for the child, there was no indication that the grandparents had established any parental relationship with the child.
Moreover, the facts in Peterson indicate that the custodial mother was residing with her parents because of her health. Although the mother and child did remain there until the mother‘s death, it appears that the arrangement was not initially intended to be a permanent one. In the case before us, however, the parties in agreeing to Brendan‘s residence out of State with his father and stepmother established a permanent arrangement which would no doubt have continued but for John‘s death. Given the distinguishing facts in this case, Peterson does not require us to find that Mary had no standing to seek custody of Brendan.
In the instant case, we do not find that the trial court‘s implicit finding that Brendan was not in the physical custody of one of his parents to be against the manifest weight of the evidence or that
As Carol‘s brief repeatedly emphasizes, we are aware that the record indicated Mary took affirmative steps, such as staying with friends immediately after John‘s death, to prevent Carol from attempting to take possession of Brendan after John‘s death. Additionally, Mary may have possibly failed to fully inform the Virginia court during the guardianship proceedings of Carol‘s desire to obtain possession and control of Brendan, not to mention the fact that Carol retained liberal rights of visitation under the Illinois circuit court‘s order entered in 1984. However, Carol did not have the right to unilaterally retake physical custody of Brendan since the legal custody of Brendan upon John‘s death did not automatically revert to Carol. In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140 (death of the custodial parent after a final judgment of dissolution of marriage has been entered does not automatically revert custody to the surviving noncustodial parent, but the court has jurisdiction to determine further custody transfers in that the legal custody of the child after the custodial parent‘s death is not immediately in anyone).
The proper procedure, as followed by Carol, was to petition the court for a modification of custody pursuant to
The judgment of the circuit court is affirmed.
Affirmed.
WOODWARD, J., concurs.
JUSTICE DUNN, dissenting:
I respectfully dissent because the holding of the majority cannot be reconciled with our supreme court‘s decision in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.
The majority recognizes that Mary only had standing to petition for custody of Brendan under the Act if he was “not in the physical custody of one of his parents”
“Considering, however, that the mother continued to live with the child, it would not reasonably occur to the father that the maternal grandparents had physical custody of his child and were developing a position of standing, so that upon the death of his wife he could be deprived of his right to custody of his child. The father regularly exercised his visitation rights with Lynette at the Jadrychs, where Lynette and her mother lived. Within the meaning of section 601(b)(2) Lynette must be considered to have been, upon her mother‘s death, in the physical custody of her father.” (Emphasis added.) Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153.
As Justice Green observed in his special concurrence in In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, 536 N.E.2d 1359, Peterson provides that if the noncustodial parent continually shows interest in a child and seeks custody upon the death of the custodial parent, a constructive physical custody will be implied in favor of the noncustodial parent. (Gustafson, 181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring).) This serves to protect the right of natural parents as against third parties to the care, custody,
The only major factual difference between this case and Peterson is that the noncustodial parent contested custody of the child during the dissolution proceedings in Peterson while Carol Carey agreed in the case at bar that her husband, John, would receive custody of Brendan. Such an agreement, however, is not tantamount to an abandonment of a child or a loss of interest in him. A holding to the contrary would only serve to discourage amicable settlement of custody matters in dissolution proceedings by forcing the parties to litigate custody matters in order to fully protect their parental rights in the event of the other parent‘s death.
In the case at bar as in Peterson, the noncustodial parent regularly exercised visitation rights and maintained an interest in the child. It would not have occurred to Carol that the presence of Mary in John‘s household could cause Mary to attain standing to seek custody of Brendan in the event of John‘s death, just as it would not have occurred to the father in Peterson that the presence of the mother in the grandparents’ household would give the grandparents standing to seek custody upon the mother‘s death (112 Ill. 2d at 54, 491 N.E.2d at 1153). Under Peterson and
In addition to protecting the rights of noncustodial parents, the Peterson holding also serves the interests of children. This is somewhat ironic because the standard for custody determinations under the Act is the best interests of the child, and Peterson takes a restrictive view of standing under the Act. By doing so, however, our supreme court has discouraged custody litigation upon the death of custodial parents, thus preventing many children who have undergone the trauma of a parent‘s death from then undergoing the trauma of being the subject of a custody battle. In cases where the noncustodial parent is an unfit custodian, custody may still be challenged under the Adoption Act