*1 aggravat enumerated of several accompanied by one battery gravated (b) battery aggravated listed subsection circumstances ing 1994)). (West 4(b) Ill. 2d at Espinoza, statute 5/12— offenses, the second identical us does not involve case before 259. The offenses, test. Koppa the third test, similar but Koppa violence conviction the armed that we vacate Defendant asks would, I count. possession unlawful sentencing on the remand for as a sentencing remand for sentence and however, 15-year vacate the years. minimum of 6 felony X with a Class HOUGHTON, Petitioner, and WALTER In re MARRIAGE OF RHONDA K. (Maurine Winkler, HOUGHTON, Intervenor- Respondent-Appellant W. Appellee). Fourth District No. 4 —98—0168 Rehearing January denied 1999. Opinion filed November *2 COOK, J., dissenting.
Talmadge Brenner, Quincy, G. appellant. Inghram Inghram Inghram,
John T. Quincy, & appellee. IV JUSTICE opinion STEIGMANN delivered the of the court: In March judgment trial court entered a dissolving the respondent, and Houghton, K. petitioner, Rhonda marriage between daugh- their custody of Walter sole Houghton, granting and Walter W agreement between Walter to an ter, May pursuant In Destiny. Destiny. custody Rhonda sole Rhonda, granted the court death, granted the trial court Rhonda’s following December mother, (Kay), Rhonda’s intervenor, Kay Winkler Maurine petition custodian. Kay Destiny’s to make modify custody (1) under sec- Kay lacked arguing that appeals, Marriage Act Dissolution of Illinois 1996)) 5/601(b) (2) (West (Act) (750 modify file a Kay never filed order was void because custody; the trial court’s (a) granting custody; and the court erred modify (b) restricting visitation modify custody, and Walter’s Kay’s petition to argument first and reverse. Destiny. agree with Walter’s We
I. BACKGROUND presented the evidence dur- parties Because the are familiar with the extent nec- ing hearing Kay’s petition, we discuss in context. essary put standing argument to Walter’s lack of During their mar- April Walter and Rhonda were married child, March 1994. In June riage, they had one born began serving two-year prison obstructing po- sentence for prison, lice officer. testified that while Walter was awhile[,] stayed “[o]nce home. stated that *3 her, get very would come and but not often.” 1994, In of mar- petition October Rhonda filed a for dissolution 1994, cross-petition filed a for dissolu- riage, and November Walter 1994, prison. In was released from marriage. December Walter release, Destiny from her Immediately upon picked up his Walter During baby-sitter, Destiny again began living and once with Walter. month, her because that same Rhonda dismissed dissolution However, proceeded she Walter with and Walter reconciled. 1995, judgment and in March the trial court entered a cross-petition, Destiny. dissolving marriage granting custody and sole Walter divorce, Rhonda reconciled and lived Following their Walter and judgment together off and on. From the time of the dissolution Destiny’s legal custodian. May March 1995 until Walter was sole time, Kay testi- Throughout Destiny of that also lived with him. most Destiny February dropped fied that in Walter off Rhonda home, May 1996. Walter Kay’s pick up and he did not them until this, Destiny Kay’s to disputed claiming that he took Rhonda and agreed He that Rhonda home Rhonda wanted to move out. because refused to When Rhonda keep Destiny could with her for two weeks. bring Destiny him back to at the end of the two-week period, asked the County Adams department sheriffs retrieve him, and it did. May 1996,
In Walter and agreed that Rhonda could have custody sole of Destiny, they joint petition filed a modify accordingly. Pursuant to their agreement, the granted trial court petition and awarded Rhonda sole custody Destiny. Walter testified agreed that he to transfer to Rhonda because he and Rhonda were going remarry and “Rhonda basically wanted *** that as some sort of a nail in the wall to hold otir relationship together.” Between May 1996 and March Walter and Rhonda together lived Although off and on. Destiny usually lived with Rhonda during that period, time Kay testified that Walter sometimes had “physical custody” Destiny opposed to Rhonda. 9, 1997,
On March Rhonda died in an automobile accident. Later day, that same Walter located who had staying been nonrelatives, some and took her to live with him. On March Walter filed a to reestablish of Destiny, which the trial court granted. From the time of Rhonda’s death until the trial court’s granting petition to modify custody in December 1997, Destiny lived with Walter and visited with every other weekend, pursuant agreement to an between Kay. Walter and November the trial court hearing conducted a on Kay’s petition. In December granted the petition, awarded Kay custody Destiny, granted Walter restricted visitation with Destiny. appeal This followed.
II. ANALYSIS A. The Petition Modify To
Initially, we argument note Walter’s the trial court’s December 1997 order was void never filed a petition to modify custody in .proceedings. Kay these concedes that the record here does copy not contain a of her petition modify custody that file-stamped by been Nonetheless, the clerk of court. she contends that the record actually indicates that she petition. Specifi- filed her cally, points she to the following: a June specifi- 1997 written order cally “[pjetition mentioned a [mjodify Winkler”; filed M. Kay in August filed motion to continue which stated that “[tjhere [cjourt [mjotion currently pending [cjhange before this [cjustody of the parties’ minor child from the father to the maternal *4 grandmother”; and the record objection discloses no or complaint from Walter that he had not copy Kay’s petition. received a
Although appears Kay’s that response argument to Walter’s based, soundly custody may be modify filed a that she never case, this resolution of Because of our it further. decline to address we matter. decide this we need not Standing
B. standing lacked under section argues that also 5/601(b)(2) (West 1996)) 601(b)(2) peti- file a of the Act has argues that Walter custody. response, Kay In modify it until after the failing to raise standing by forfeited the issue Alternatively, Kay argues Kay’s petition. hearing on November 601(b)(2). agree We under section standing that she had standing. lacked 1. Forfeiture 601(b)(2) affir of the Act is an under section standing Lack of in a motion to dismiss is forfeited unless raised mative defense which Sechrest, during pleading. the time for Sechrest, this court held that the natural 3d at raising for the first standing by issue of the issue had forfeited the with the child years passed time in a motion after three posttrial the fol holding, In so this court wrote parties. of third lowing: Kennedys, as third make clear under the Act the
“We seek to custody [the child]. parties, standing did not have future, carefully trial courts must prevent To such situations necessary, raise the pleadings may, sponte sua examine if standing.” (Emphasis standing or lack nonparent’s issue added.) Sechrest, 560 N.E.2d at case, that Walter first raised present undisputed In the it is the trial in motion to reconsider standing issue of lack of However, despite petition. her granting court’s December 1997 order standing issue at the November Walter’s failure to raise the and the hearing, that issue at that hearing, presented evidence was ruling. In its December subsequent court it in its specifically addressed order, found that “the maternal specifically 1997 written the court her [(Kay)] pursue [p]etition grandmother herein has 601(b)(2) [m]odify pursuant requirements [s]ection [Act].” issue, consistent with addressing this
We commend Thus, sponte the court sua court’s decision in Sechrest. this section Kay’s standing under upon addressed and ruled the issue of forfeited that is- Act, has not we conclude Walter sue.
Our conclusion is underlying purpose consistent with the is, forfeiture doctrine —that to preserve judicial finite resources creating litigants an incentive for bring issues to the trial courts’ attention, thereby giving opportunity courts an to consider those is McKay, sues. See v. People App. 108, 111, 282 Ill. 3d 580, 668 N.E.2d (1996). discussed, 583 As earlier although Walter did not bring the is sue of standing attention, to the trial court’s by its own court — Moreover, initiative —did consider the issue. we note that the court’s sponte 601(b)(2) sua consideration of standing under section of the Act comports with the notion that the termination parental of rights is an extraordinary measure that may warrant considering is resorting sues without judicial to doctrines of convenience, such as Y.B., forfeiture. See In 385, 390, re 285 Ill. App. 819, 3d 674 N.E.2d (1996). 821-22 addition, (nor we note that does not contend on appeal did matter) she court, before the trial for that that she would suffer preju dice if the issue of was deemed not forfeited. See In re Custody McCarthy, 377, 380-81, 157 Ill. App. 555, 3d 510 N.E.2d of (1987) (trial court has discretion to tardy filing allow of a motion challenging dismiss standing unless it can be demonstrated that the opposing party prejudiced by was filing). the late
Although we conclude that Walter has not forfeited the issue of Kay’s lack of standing, we nonetheless do not condone his failure to raise the issue in a timely motion to dismiss.
2. Merits 601(b)(2) Section provides, of the Act part, relevant as fol lows:
“(b) custody proceeding child is commencedin the court: (2) by person a parent, by other than a filing petition *** custody of the child but he is not in the if added.) parents.” one (Emphasis 750 ILCS of of 5/601(b)(2)(West 1996). The superior right of a parent natural of his child is recognized protected and in the Act by requiring nonparent seeking custody to meet the standing requirement embodied section (750 5/601(b)(2) (West 1996)) of the Act ILCS being before considered for under the best interests standard set forth (West 1996)). section 602 of the Act See In re Petition 5/602 Kirchner, 164 Ill. 2d 324, (1995); 649 N.E.2d 334-35 Marriage Brownfield, 728, 732, 1198, 283 Ill. 3d 670 N.E.2d (1996). standing, To establish nonparent has the burden showing that a child is “not in physical custody of one of his 5/601(b)(2) 750 ILCS custody of the child. she can seek parents” before (West 490-91, at Kirchner, 649 N.E.2d 1996); 164 Ill. 2d at see also 632, 684 N.E.2d 3d 334-35; of Rudsell, In re 421, custody not have parent that a does determination rather, parent requires possession; turns not on
his child
relinquished custody
voluntarily
indefinitely
“somehow has
added.)
at
Kirchner,
at
649 N.E.2d
(Emphasis
child.”
Peterson,
491 N.E.2d
335;
112 Ill. 2d
see also In re
(1986). However,
of a child
every voluntary
turnover
custody. The trial court must
deprive
will
(1)
for the care
responsible
such as
who was
consider factors
custody proceedings;
the initiation of
prior
welfare of the child
acquired;
of a child was
physical possession
the manner which
Kirchner,
Ill. 2d
possession.
See
the nature and duration
336; Rudsell,
649 N.E.2d at
*6
in a
reviewing
at
court
disturb a trial court’s decision
425.
will
against
if it was
the manifest
custody proceeding
DeVriendt,
injustice.
in
Franklin v.
evidence or will result manifest
(1997).
651, 655-56,
578,
App.
288 Ill.
3d
681 N.E.2d
581
“voluntarily
The record is clear that Walter never
care, custody, and control of
indefinitely” relinquished
right
Destiny.
assuming
relinquished physical
that Rhonda had
Even
custody Destiny Kay
imprisoned
of
June
to
while Walter was
between
(when
1996 and
mar
December 1996
Rhonda and Walter were still
ried),
imputed
Rhonda’s unilateral
could not
to
relinquishment
be
(“A
Kirchner,
493,
Walter. See
at
unilat
We also Kay’s voluntarily contention that Walter indefinitely relinquished physical custody Destiny of to her when he left Rhonda and Destiny length at Kay’s February home 1996. of time Destiny Kay (according Rhonda and stayed disputed weeks). Kay, months; Walter, it was three according it was two Regardless, considering legal custody Destiny that Walter had sole of at that time and Rhonda continued to live with it would be expect unreasonable to to think Walter
of Destiny. Moreover, undisputed it is exhibited interest that Walter Destiny when he department secured the assistance of the sheriffs retrieve her from residence.
782 1996,
In May agreed Walter to transfer Destiny of Rhonda he remarry Rhonda, wanted to and Rhonda wanted showing some of sincerity. Following Walter and agree- Rhonda’s ment to custody Destiny Rhonda, transfer Walter and Rhonda together lived off and on until Rhonda’s death March acknowledged that during period, that time sometimes “physical custody” Destiny as opposed Importantly, to Rhonda. even when Walter and Rhonda living together were not during that time period, Rhonda and Kay. Instead, never lived with Destiny simply visited her on weekdays. weekends and some “ ‘Overnight parties contact with third fails to fulfill the statu
tory provision that the child not be in the physical custody of one *** of her parents. do accept petitioner’s theory We physi cal may relinquished by be parent default if a performs the ” task of parenting in a less than adequate Sechrest, manner.’ Ill. App. quoting N.E.2d at Barokas, 536, 544, 3d 440 N.E.2d See also In Custody O’Rourke, re 584, 587, 3d (despite parties’ third weekly daily and often care children, the legal custody of children remained with the father). death, mother until her at which point it transferred to the 9, 1997, On March day died, Walter found nonrelative’s house and took her to live with him. On March filed a custody Destiny, reestablish which the trial granted. See In Gustafson, re (if (Green, J., concurring) specially noncustodial consistently interest in his child and shows promptly seeks custody upon parent, the death custodial courts imply will constructive custody in favor of the noncustodial- parent).
We acknowledge the we must deferential standard under which *7 However, review a trial court’s decision in a after custody proceeding. carefully reviewing ap- the record the before us accordance with propriate review, finding standard we conclude that the court’s (750 601(b)(2) ILCS under section of the Act 5/601(b)(2) (West 1996)) voluntarily relinquished Walter had custody of Destiny against was the manifest of the evidence.
III. CONCLUSION judgment. trial court’s stated, reverse the we reasons For the Reversed. J.,
KNECHT, concurs. COOK, dissenting: JUSTICE the Act is of section standing requirement The If one of the right parents. natural superior the protect designed may bring not child, nonparent the custody of physical has parents custody under continuing right to parent’s to contest an action instead, 602; unfit of section standard the best-interests-of-the-child the strict standard comparatively under proved must be ness 1996)) (West (705 or seq. ILCS et Act of 1987 Court Juvenile 405/1—1 (West 1996)). Gustafson, seq. et Act Adoption 50/1 Divorce 1360; Marriage and Uniform N.E.2d at 3d at App. Ill. (1998). However, where Comment, 9A U.L.A. §Act “is not children, the child raising the where actually not are parents 601(b)(2) allows section parents,” custody of one in the custody. nonparent filed, or at the time the that exists It is the situation was Kay’s petition filed, important. which is immediately before it is while Walter The fact that in late 1997. filed Rhonda had custody in 1995 or that that Walter had prison or was relevant. particularly in 1996 is not located who death “Walter fact that after Rhonda’s nonrelatives, her to live with and took staying with some had been posses 3d at 782. Mere controlling. him” is not is initiated will be custody litigation child at the time sion of the minor to a court will not tolerate abduction enough, because Peterson, 112 Ill. standing requirement. satisfy the literal terms of 1152-53; Rudsell, 3d at at 491 N.E.2d Menconi, 426; (1983) (father peti days child four before forcibly removed N.E.2d 835 filed). parents of one of her before Was it clear that The trial court’s order makes Kay’s petition was filed? respondent “The finds that physical custody. not have Walter did the death of the minor child until has had little contact with the jail released from 1997,” March that after'he was petitioner on then with grandparents, respondent resided with December female friend. friend, with a different a male friend and female then *8 physical Did Rhonda have custody before her problem death? The allowing with the issue standing to be raised after the evidence has been taken is that it is unlikely the evidence will do much more than touch on the issue. There was evidence that Rhonda did not have physical custody. At the time of Rhonda’s death Destiny had been “staying with some nonrelatives.” It would have been helpful to have known some details of that stay. There testimony was also that Rhonda did continuously physical have custody Destiny in the months death, before her that Walter and others sometimes had “physical custody,” although the trial court found that Walter’s relationship with the child did not amount “physical custody.” majority that, sees it important even when Walter and living were not together period death, before Rhonda’s Destiny “Rhonda and never Kay.” lived with 3d at 782. It is irrelevant whether Kay. lived with What important is is whether lived with one of her parents. not, If she did for example, if she was in the aunt, of an or was in no one’s physical custody, simply moving from house to house after a few days’ stay, then anyone else had standing to file a for custody. parent
When
legal custody,
one
has
the custodian
destroy
cannot
the rights of the
by giving up
noncustodian
the
party.
child to a third
That is what Kirchner meant when it said the determination that a
parent
physical custody
rather,
does not have
possession;
turns not on
it requires
that that
voluntarily
somehow has
and indefinitely
relinquished custody
Kirchner,
of the child.
164 Ill. 2d at
Kirchner, however,
N.E.2d at 335.
where the mother told the father
the
gave
child was dead and then
up
adoption,
child
for
a very
is
different
Brownfield,
case from this one. See
(Cook, J.,
Because Walter did not raise the issue of
until after the
evidence had
presented,
sparse
been
the evidence on
is
Nevertheless,
this case.
there was
the trial
support
some evidence
decision,
court’s
and I
say
contrary
cannot
that decision was
manifest
contrary
evidence. decision is
to the manifest
weight of the
opposite
apparent
evidence when an
or
conclusion
unreasonable,
findings
when the
are
on
arbitrary or not based
the evi-
R.R.,
Ill. 2d
v. Illinois Central
dence. Rhodes
Gulf
A lack of evidence
the case here.
1260, That is not
of the trial
opposite to that
a conclusion
apparent
does not make
inferences, even from
court to draw
improper
this
court. It is
court,
facts,
drawn
the trial
contrary to those
uncontested
conflict
evidence
example,
majority
points
where
Kay;
states that would
Destiny stayed
how
Rhonda and
long
expect
to think that
be unreasonable
*9
(3)
Destiny;
agreed
that Walter
to transfer
custody of
concludes
sincerity wanting
his
to
Destiny only
showing
custody of
very
Ill.
court was
3d at 782. The trial
remarry Rhonda.
here,
and the child
relationship
about the
between Walter
concerned
just
custody Kay,
restricting
Walter’s visitation.
awarding
to
but
raise
issue of
urged the trial court to
the
sua
Sechrest
after
the issue is waived.
during
pleading,
the time for
which
sponte,
The
Sechrest,
3d at
and at other times was not to have sufficient custody in after Rhonda’s death Walter had from the nonrelatives with whom she been took analysis are staying. majority’s Those facts discussed above. does key question, physical custody not address the Rhonda had whether the time of her death. physical custody
It
not clear that
of a
is
was
case,
being
accept
before
was
That
the
we should
this
filed.
standing require-
the
finding
decision of the trial court
standing.
ment
rough
prevent
filing
petitions by
is useful as a
filter to
the
child,
the
but is
legitimate
those who have no
interest
the care of
do
poorly
those who
have
resolving
disputes
suited
real
between
by standing requirement
such an interest.
is
Deciding these cases
summary judgment. In
every
similar
case
attempting
decide
fact,
looks to the
summary judgment
it is worse because motion for
case,
standing requirement
issues in
addresses
the
while the
custody of
artificial
whether
child is “in the
one of
issue
parents.”
of section
application
standing requirement
Broad
of the
601(b)(2) will result
in awards contrary to the best interests of the
child. A standing requirement
unnecessary
protect
the natural
rights
parent.
Even where the court
decides
case under the
standard,
best-interests-of-the-child
give
still will
considerable
right
parent.
Townsend,
natural
86 Ill. 2d
(1981); Rudsell,
THE PEOPLE THE ILLINOIS, OF STATE OF Plaintiff-Appellee, v. HANCOCK,
NICHOLAS W. Defendant-Appellant. Fourth District No. 4 — 98—0221 Argued Opinion October filed December 1998.