In re PERSON AND ESTATE OF BENNY A. NEWSOME et al., Minors (John Lewis et al., Petitioners-Appellants, v. Benny Newsome, Respondent Appellee (Danny Ford, Respondent)). — In re CUSTODY OF BENNY NEWSOME, JR. (Benny Newsome, Petitioner-Appellee, v. John Lewis et al., Respondents-Appellants).
No. 4-88-0022
Illinois Appellate Court — Fourth District
July 26, 1988
173 Ill. App. 3d 376 | 527 N.E.2d 524
James R. Burgess, of Urbana, for appellee.
Judgment vacated and cause remanded.
Patricia Morris died suddenly on June 26, 1987, leaving her two children, Benny A. Newsome (Benny, Jr.) and Tamika Caprise Smith. She, evidently, was still legally married to Joe Morris. Petitioners John and Annette Lewis, parents of Patricia, filed a petition under
After taking evidence, the trial court entered an order on January 8, 1988, which found respondent to be the natural father of Benny, Jr. In awarding custody to respondent, the court found that petitioners lacked standing to bring a petition under either the
The trial court‘s ruling is based upon the theory that petitioners lacked standing. There is no finding made as to the best interest of the child. Further, petitioners and respondent dispute only the custodial right to Benny, Jr. Tamika is not a part of this appeal.
1 A portion of the
[N]onparents must first show that the child is “not in the physical custody of one of his parents.” When this requirement has been met, the nonparent will be considered for legal custody of the child under the “best interest of the child” standard
(see Ill. Rev. Stat. 1981, ch. 40, par. 602 ), without necessity of first establishing the unfitness of the natural parents. (Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.)
Further, the limiting language of
[T]he standing requirement under
section 601(b)(2) should not turn on who is in physical possession, so to speak, of the child at the moment of filing the petition for custody. Peterson, 112 Ill. 2d at 53-54, 491 N.E.2d at 1152.
2 In Peterson, the supreme court discussed the superior rights doctrine. The natural parents have the superior right to care, custody, and control of their children. (Peterson, 112 Ill. 2d at 51-52, 491 N.E.2d at 1151; In re Custody of Townsend (1981), 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234.) The superior rights doctrine is incorporated into the
In Peterson, the supreme court dealt with a petition filed by the maternal grandparents under
The supreme court ruled the grandparents had no standing to seek custody. The court found the child was in the physical custody of the mother while living at the grandparents’ home, even though the mother was too weak to physically care for the child. The fact that the mother lived with her parents and the child was sufficient. Moreover, the father regularly exercised his visitation rights and acted immediately upon the death of the mother to obtain custody. The court stated:
“Within the meaning of section 601(b)(2) [the child] must be considered to have been, upon her mother‘s death, in the physical custody of her father. * * *[The child] was in the sole care of the [grandparents] only through the fortuitous occurrence of [the mother‘s] death. When they asserted a claim to custody following the mother‘s funeral, the claim was immediately challenged by the father. * * * The appellate court erred in its holding that the [grandparents] had standing under
section 601(b)(2) simply because they were, in a sense, in physical possession of the child at the time the petition was filed.” (Peterson, 112 Ill. 2d at 54-55, 491 N.E.2d at 1153.)
There was no transfer of custody to the grandparents such as would grant them standing.
3 Petitioners argue the instant case is distinguishable from Peterson for three reasons. First, petitioners point out that Peterson involved modification of a prior custody order; part of a divorce decree. In the present case, the first attempt at involving the courts was petitioners’ petition for guardianship following Patricia‘s death. Respondent counters by stating this distinction is without merit. We agree. Whether the courts were previously involved is not of significance. To say otherwise would give nonparents standing in situations where the parents were separated without court order. We cannot envision the supreme court, in Peterson, finding standing for the grandparents if the mother and father were separated and not divorced. The social policy that parents have the superior right to care, custody, and control of their children extends further than cases involving custody disputes determined by the courts.
4 Second, petitioners argue the father in Peterson provided a more stable home life than respondent has provided and will probably provide for Benny, Jr. In essence, the petitioners are arguing a “best interest of the child” standard. However, as our previous quotation from Peterson indicated, petitioners cannot argue which environment is better for Benny, Jr., prior to obtaining standing.
5 Third, petitioners argue there was no official determination that respondent was Benny, Jr.‘s, father. In Peterson, there was no doubt the respondent was the child‘s father. Petitioners point to the slight evidence in the record regarding the paternity of Benny, Jr. Tamika, Benny, Jr.‘s, 11-year-old sister, testified at the hearing. She stated that she never heard respondent claim to be Benny, Jr.‘s, father. Also, according to Tamika and Annette Lewis, respondent spent much of his time away from the apartment. On the other hand,
We agree that the major factor distinguishing the facts in the present case from the Peterson case concerns the prior lack of a determination of respondent‘s parental status. We do not agree that because Benny, Jr., is illegitimate, petitioners have met the burden of showing the boy was not in the physical custody of a “parent.”
We need not set forth the common law history of bastardy that began with the legal fiction of an illegitimate child being born without a father. Social demands resulted in paternity legislation. As early as 1827, a father of an illegitimate child was given rights as to custody. (See Wright v. Bennett (1845), 7 Ill. 587.) In 1972, the United States Supreme Court held that Peter Stanley, the resident father of his illegitimate children, was entitled, upon the death of the mother of the children, to their custody, absent a judicial hearing resulting in a finding of his lack of fitness. (Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208.) The Stanley majority held that it was a violation of the equal protection clause to require a hearing and proof of neglect when removing children from married parents, divorced parents, and unmarried mothers, but denying such protection to the illegitimate father. Stanley, 405 U.S. at 658, 31 L. Ed. 2d at 562-63, 92 S. Ct. at 1216.
6 While upholding visitation rights of a natural father based upon the best interest test, our sister court stated in LeHew v. Mellyn (1985), 131 Ill. App. 3d 314, 315, 475 N.E.2d 913, 914:
“The United States Supreme Court has established that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. (Quilloin v. Walcott (1978), 434 U.S. 246, 255, 54 L. Ed. 2d 511, 519-20, 98 S. Ct. 549, 554-55; Stanley v. Illinois (1972), 405 U.S. 645, 649, 31 L. Ed. 2d 551, 557, 92 S. Ct. 1208, 1211-12.) This right has been recognized by the Illinois courts. (People ex rel. Slawek v. Covenant Children‘s Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291; Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631.) In Covenant Children‘s Home, our supreme court observed that ‘[t]he interests of the father of an illegitimate child are no different from those of other
parents.’ People ex rel. Slawek v. Covenant Children‘s Home (1972), 52 Ill. 2d 20, 22.”
We conclude that equal protection requires us to treat the issue of petitioners’ standing in the same manner as the grandparents were treated in Peterson. If respondent proves to be the actual father of Benny, Jr., and he had physical custody of the boy, petitioners are without standing under
7 A serious question does exist because the mother of Benny, Jr., was evidently married to another at the time of Benny, Jr.‘s, birth. We note that the
8 Prior to a determination of a father‘s parentage under sections 6 or 7 of the
9 The evidence in the trial court indicated the marriage of Patricia Morris and Joe Morris existed at the time of the conception and birth of Benny, Jr. Joe Morris, then, was presumed to be the father of Benny, Jr., and was a necessary party to any proceedings relating to Benny, Jr.‘s, parentage. The record indicates there was no service of summons on Joe Morris. Our court‘s decision in In re Adoption of Ledbetter (1984), 125 Ill. App. 3d 306, 465 N.E.2d 962, is controlling, and because there is an absence of service on Joe Morris, and he did not appear, the adjudication of parentage is null and void. Without the determination of parentage, which determination is the first order of the court‘s business, there cannot be a determination of standing.
The judgment of the circuit court as to both parentage and standing is vacated, and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion. If upon service of summons Joe Morris fails to appear or fails to file responsive pleadings, the trial court is directed to affirm the judgment heretofore entered.
Vacated and remanded with directions.
GREEN, P.J., and KNECHT, J., concur.