In Re RLS
At issue in this appeal is the standing requirement for guardianship petitioners under article 11 of the Probate Act of 1975 (Probate Act) (
BACKGROUND
The minor, R.L.S., is the daughter of Karyn S. and respondent, Ronald S. On December 15, 2002, Karyn died in an automobile accident. At the time of her death, Karyn and respondent were separаted. Karyn and R.L.S. had been living with Karyn‘s maternal grandmother, Alma Meyers. Respondent resided in Florida. Following Karyn‘s death, R.L.S.‘s maternal grandparents, Ronald and Marsha Timmons (petitioners), filed a petition in the circuit court of La Salle County to be appointed R.L.S.‘s temporary and permanent guardians. The trial court entered an ex parte order appointing petitioners temporary guardians of R.L.S. and set the matter for a hearing.
Respondent moved to dismiss the petition, arguing that petitioners lacked standing to bring a petition for guardianship. The trial court denied the motion. The court relied on section 11-5(b) of the Prоbate Act (
Petitioners appealed, and the appellate court reversed. 354 Ill.App.3d 462, 290 Ill.Dec. 134, 820 N.E.2d 1201. The appellate court held that the sole standing requirement for guardianship petitioners is stated in section 11-5(b) of the Probate Act. The court specifically rejected Newsome‘s analysis. Newsome based its decision on the incorporation of the superior rights doctrine into both the Marriage Act and the Probate Act. The superior rights doctrine is a presumption that parents have the superior right to the care, custody, and control of their children. In re Custody of Peterson, 112 Ill.2d 48, 51, 96 Ill.Dec. 690, 491 N.E.2d 1150 (1986). Newsome reasoned that, because both the Marriage Act and the Probate Act incorporate the superior rights doctrine, petitioners under the Probate Act should have to meet the standing requirement of the Marriage Act. Newsome, 173 Ill.App.3d at 379, 123 Ill.Dec. 61, 527 N.E.2d 524. In the present case, the appellate court rejected this analysis, holding that “how the superior rights doctrine is effectuated in one act is irrelevant to application of the same doctrine in another.” 354 Ill.App.3d at 466, 290 Ill.Dec. 134, 820 N.E.2d 1201. The appellate court remanded the cause to the trial court to resolve the standing question under section 11-5(b) of the Probate Act. 354 Ill.App.3d at 468, 290 Ill.Dec. 134, 820 N.E.2d 1201. We allowed respondent‘s petition for leave to appeal.
ANALYSIS
The primary objective in construing a statute is to give effect to the legislature‘s intent, presuming the legislature did not intend to create absurd, inconvenient or unjust results. In re Madison H., 215 Ill.2d 364, 372, 294 Ill.Dec. 86, 830 N.E.2d 498 (2005). Accordingly, courts should consider the statute in its entirety, keeping in mind the subject it addresses and the legislature‘s apparent objective in enacting it. People v. Davis, 199 Ill.2d 130, 135, 262 Ill.Dec. 721, 766 N.E.2d 641 (2002). The best indication of legislative intent is the statutory language, given its plain and ordinary meaning. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 479, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). When the statutory language is clear, it must be given effect without resort to other tools of interpretation. In re Marriage of Rogers, 213 Ill.2d 129, 136, 289 Ill.Dec. 610, 820 N.E.2d 386 (2004). Moreover, this court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Issues of statutory construction are reviewed de novo. In re Michelle J., 209 Ill.2d 428, 434, 283 Ill.Dec. 699, 808 N.E.2d 987 (2004).
Respondent argues that the appellate court erred in failing to follow other appellate court decisions holding that the standing requirement of the Marriage Act must be read into the Probate Act. See, e.g., Newsome, 173 Ill.App.3d at 379, 123 Ill.Dec. 61, 527 N.E.2d 524; In re Marriage of Haslett, 257 Ill.App.3d 999, 1006, 195 Ill.Dec. 874, 629 N.E.2d 182 (1994); In re Person & Estate of Barnhart, 232 Ill. App.3d 317, 320-21, 174 Ill.Dec. 26, 597 N.E.2d 1238 (1992). We disagree. As petitioners point out, the rule that petitioners under the Probate Act must satisfy the standing requirement of the Marriage Act was first stated in Newsome, a case decided before the legislature added a standing
The reasoning of Newsome was as follows. The superior rights doctrine, which holds that parents have the superior right to the care, custody, and control of their children, is incorporated in both the Marriage Act and the Probate Act. The Probate Act recognizes the doctrine in section 11-7, which 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 еqual 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.”
755 ILCS 5/11-7 (West 2004) .
The superior rights doctrine is also recognized in section 601(b)(2) of the Marriage Act. Section 601, which is entitled “Jurisdiction; Commencement of Proceeding,” provides in subsection (b)(2) that a custody proceeding may be commenced by a nonparent “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.”1
After Newsome was decided, the legislature amended section 11-5(b) of the Probate Act to add a standing requirement. Section 11-5(b) now provides as follows:
“The court lаcks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if (i) the minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consent to the appointment or, after receiving notice of the hearing under Section 11-10.1, fail to object to the appointment at the hearing on the petition or (ii) there is a guardiаn for the minor appointed by a court of competent jurisdiction. There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out
day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b) (West 2004) .
In In re Estate of Johnson, 284 Ill.App.3d 1080, 1090, 220 Ill.Dec. 474, 673 N.E.2d 386 (1996), the appellate court, relying on this court‘s case law interpreting section 601(b)(2) of the Marriage Act, interpreted this to be a standing requirement for nonparents. The court determined that section 11-5(b) was intended to prevent the circuit court from exercising jurisdiction when the petitioner lacks standing. Johnson, 284 Ill.App.3d at 1090, 220 Ill.Dec. 474, 673 N.E.2d 386. We agree with this interpretation. This court interpreted the similar provision of section 601(b)(2) as a standing requirement for nonparents (Peterson, 112 Ill.2d at 52, 96 Ill.Dec. 690, 491 N.E.2d 1150), but later clarified that, when used in this sense, “standing” simply referred to a threshold statutory requirement that had to be met before the court could proceed to a decision on the merits (see A.W.J., 197 Ill.2d at 496-97, 259 Ill. Dec. 392, 758 N.E.2d 800). Thus, to have standing to proceed on a petition for custody under the Marriage Act, a petitioner must show that the child is not in the physical custody of one of his or her parents.
Respondent maintains, nevertheless, that the Newsome court‘s reading of the Probate Act is necessary to preserve the Act‘s constitutionality. Respondent contends that, unless guardianship petitioners under the Probate Act are required to show that the child is not in the physical custody of one of his parents, the Probate Act violates the parents’ due process rights.
Petitioners contend that respondent has waived any constitutional arguments because he did not make them in the trial court or in the appellate court and because he did not notify the Attorney General pursuant to Supreme Court Rule 19 (
Respondent‘s due process argument is based on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality op.). In Troxel, the Supreme Court considered a challenge to a Washington statute that allowed any person to petition for visitation rights “`at any time,‘” and аuthorized the court to grant visitation rights whenever “`visitation may serve the best interest of the child.‘” Troxel, 530 U.S. at 60, 120 S.Ct. at 2057, 147 L.Ed.2d at 53, quoting
Second, there had been no court finding, or even an allegation, that the custodial parent was unfit. The Court noted the presumption that fit parents act in the best interests of their children. Troxel, 530 U.S. at 68, 120 S.Ct. at 2061, 147 L.Ed.2d at 58. The Court explained that, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent‘s children.” Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061, 147 L.Ed.2d at 58. The Court held that if a fit
We disagree with respondent‘s assertion that the Probatе Act, when not read in conjunction with section 601(b)(2) of the Marriage Act, suffers from the same infirmities identified by the courts in Troxel and Wickham. Respondent argues that, just as the Washington statute allowed “any person” to petition for visitation at “any time,” the Probate Act allows any qualified nonfelon adult (
While it is true that the Probate Act places only minimum limits on who may file a petition for guardianship, the Probate Act does not suffer from the first infirmity identified by the Supreme Court in Troxel. The problem with the “any person” at “any time” language considered in Troxel was that it allowed any visitation decision by a fit parent to be subject to state court review. Once a visitation petition was filed, the statute allowed the matter to go directly to a best-interests hearing before a judge, and the parent‘s determination of the child‘s best interests would be given no deference at the hearing. Troxel, 530 U.S. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57-58. By contrast, the Probate Act prevents the court from proceeding to the merits of the guardianship petition if the child “has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consent to the appointment or, after receiving notice of the hearing under Section 11-10.1, fail to object to the appointment at the hearing on the petition.”
The second major problem identified by the Supreme Court in Troxel was the manner in which the statute was applied to a parent who had not been found unfit. Fit parents are presumed to act in the best interests of their children, but the trial court in Troxel applied the opposite presumption. It required a parent to disprove that visitatiоn with the petitioners was in the child‘s best interests. By applying the statute in this manner, the trial court “failed to provide any protection for Granville‘s fundamental constitutional right to make decisions concerning the rearing of her own daughters.” Troxel, 530 U.S. at 70, 120 S.Ct. at 2061, 147 L.Ed.2d at 59.
Such a problem should never arise in a guardianship proceeding under the Probate Act. Section 11-7 specifically protects the custody rights of fit parents. The first sentence of this section provides that if both parents are living, fit, and competent to transact their own business, they are entitled to custody. The next sentence provides that if one parent is deceased, then the surviving parent, if fit and competent to transact his or her own business, is entitled to custody. Respondent, as R.L.S.‘s surviving parent, is thus entitled to custody if he is a fit person and competent to transact his own business.
Some ambiguity is created by the final sentence of section 11-7. This sentence provides that, “[i]f 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.” Respondent is concerned that this sentence means that, because he was living apart from the mother when she died, the cоurt may grant guardianship to some other person simply on a showing of “good reason,” and that this sentence trumps the previous sentence, which would allow him to have custody if he is fit. It appears that the trial court and the appellate court also interpreted the statute in this manner. At the beginning of the hearing, the trial court stated that, “under the facts of this case, the parents here of this minor child lived separate and apart. And under Section 11-7, if this were to be considered a custodial case as opposed to a guardianship case, I would have the right to proceed because they were living apart and make a determination based upon the evidence for good reason in awarding custody of the child.” When describing the protections afforded by section 11-7, the appellate court stated that “Section 11-7‘s requirement that the parent be found unfit
We disagree with this interprеtation. The final sentence of section 11-7 cannot be read in isolation from the previous sentences. See Lulay v. Lulay, 193 Ill.2d 455, 466, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000) (statutes should be evaluated as a whole, with each provision construed in connection with every other provision). We agree with the interpretation given this section by the appellate court in In re Estate of Brown, 207 Ill.App.3d 139, 152 Ill.Dec. 70, 565 N.E.2d 312 (1990). In rejecting an argument that section 11-7 allowed children to be more easily removed from parents who live apart, the court interpreted the “good reason” in the last sentence as referring to a finding of unfitness. Brown, 207 Ill.App.3d at 144, 152 Ill.Dec. 70, 565 N.E.2d 312. Petitioners point out that the wording of this final sentencе was necessary to fix a problem of draftsmanship. If the final sentence merely stated that if the parents live apart, the court may award custody to either parent, it might be interpreted as meaning that the court could award custody only to one of the parents. If neither parent is fit, however, the court obviously has the right to award custody to some other person. It is implicit in the first two sentences of section 11-7 that the court may award custody to some other person if the child lacks a fit parent. Further, in a situation in which both parents are fit and live apart, the court cannot rely on the suрerior rights doctrine because both parents start out on equal footing. In re Custody of Townsend, 86 Ill.2d 502, 509, 56 Ill.Dec. 685, 427 N.E.2d 1231 (1981). In such a situation, the court would have to rely on “good reason” or the best interests of the child in determining which parent should be awarded custody. Thus, as properly construed, section 11-7 provides that fit parents are entitled to custody. If the child does not have a fit parent, good reason exists to award the child to a third party. In a situation in which the parties live apart, the court may award the child to either parent if both are fit. If neither parent is fit, the court may award custody to some other person. The “live apart” language has no application when one parent is deceased. Even petitioners concede that it is not the last sentence of section 11-7 that applies to respondent, but rather the second (i.e., “if one parent is dead“).
Although section 11-7 is quite clear that fit parents are entitled to custody, this court has historically refused to apply the statute as written. Instead, this court has repeatedly held that, despite the statute‘s pronouncement, a fit parent‘s custody rights are subservient to the best interests of the child. See, e.g., Kirchner, 164 Ill.2d at 484-85, 208 Ill.Dec. 268, 649 N.E.2d 324; In re Estate of Whittington, 107 Ill.2d 169, 177, 90 Ill.Dec. 892, 483 N.E.2d 210 (1985); Townsend, 86 Ill.2d at 508, 56 Ill.Dec. 685, 427 N.E.2d 1231; People ex rel. Edwards v. Livingston, 42 Ill.2d 201, 209-10, 247 N.E.2d 417 (1969). A typical example of this court‘s view of section 11-7 can be found in Kirchner. That case reaffirmed the principle that, in an adoption case, a court cannot consider the best interests of the child and whether those interests would be best served by adoption until after the parents are proved to be unfit by clear and convincing evidence. Kirchner, 164 Ill.2d at 475-76, 208 Ill.Dec. 268, 649 N.E.2d 324. The prospective adoptive parents in Kirchner attempted to rely on Townsend for the proposition that fitness
“Although Townsend cites to Giacopelli and further finds that the father at issue need not be found unfit to award custody of his child to a third party, it does so pursuant to the Probate Act of 1975, which is only triggered upon the death of a parent, a situation we аre not confronted with in the instant case. Unlike the Adoption Act, the Probate Act does not statutorily mandate a finding of unfitness as a condition precedent to divesting a parent of custody. (See
755 ILCS 5/11-7 (West 1992) ; see also People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201 [247 N.E.2d 417] (a probate case deciding custody based upon the best interests of the child without a prior finding of unfitness).) The best-interests standard employed pursuant to the Probate Act in Townsend and Edwards is thus inapplicable to the case at bar both because this case does not involve a deceased parent and because Otto‘s cause of action arises out of the Adoption Act, which mandates a finding of unfitness before parental rights may be terminated.” Kirchner, 164 Ill.2d at 484-85, 208 Ill.Dec. 268, 649 N.E.2d 324.
There are numerous problems with this passage. First, this court mistakenly distinguished Townsend on the basis that the Probate Act is triggered only upon the death of a parent. While it is obviously true that certain sections of the Probate Act are triggered by the death of a person, it is not true of the guardianship provisions of the Probate Act. Neither article XI (
The second problem with the Kirchner court‘s view of the Probate Act was its assertion that “[u]nlike the Adoption Act, the Probate Act does not statutorily mandate a finding of unfitness as a condition precedent to divesting a parent of custody.” Kirchner, 164 Ill.2d at 484-85, 208 Ill.Dec. 268, 649 N.E.2d 324. Two authorities are cited for this proposition. The first is section 11-7, which says the exact opposite. Section 11-7 clearly provides
Not cited by the Kirchner court was section 11-5(b) of the Probate Act, the amendments to which had been in effect for one year when Kirchner was decided. As we discussed earlier, section 11-5(b) now provides that a court lacks jurisdiction to proceed on a guardianship petition if the minor has a living parent whose whereabouts are known and who is willing and able to carry out day-to-day child-care decisions. It is not clear what, if any, difference there is between section 11-7‘s reference to fit parents who are competent to transact their own business and section 11-5(b)‘s reference to parents who are willing and able to carry out day-to-day child-care decisions. The legislature might have believed that the amendment to section 11-5(b) was necessary in light of this court‘s interpretation of section 11-7. Regardless, Kirchner‘s conclusion that the Probate Act does not mandate a finding of unfitness as a condition precedent to divesting a parent of custody is rendered even more questionable by the amendment to section 11-5(b).
This court‘s cases refusing tо apply section 11-7 as written are wrong and should no longer be followed. Section 11-7 means what it says: fit parents are entitled to custody. The Probate Act, as properly construed, protects the due process rights of fit parents and does not suffer from the same constitutional infirmities as the Washington statute considered in Troxel.
For the reasons stated, we agree with the holding of the appellate court that the standing requirement for guardianship petitioners under the Probate Act is that stated in section 11-5(b). We disagree with the appellate court only to the extent that it suggested that a fit surviving parent mаy be deprived of custody under the Probate Act if he or she was living apart from the other parent at the time that parent died. We affirm the judgment of the appellate court and remand this cause to the circuit court to resolve this case under the proper standards. The petitioners lack standing to proceed with their petition unless the court determines that they have rebutted the presumption that respondent is willing and able to make day-to-day child-care decisions. Moreover, if respondent is a fit person who is competent to transact his own business, he is entitled to custody of R.L.S.
Appellate court judgment affirmed; cause remanded.
Justices McMORROW, FREEMAN, FITZGERALD, KILBRIDE, GARMAN, and KARMEIER concurred in the judgment and opinion.