Dumiak v. Kinzer-Somerville

• Decision Date: 12 September 2013
• Docket Number: No. 2–13–0336.,2–13–0336.
• Parties: Michael John DUMIAK, Petitioner and Respondent, v. Molly Ann KINZER–SOMERVILLE, Respondent–Appellee (Roman Dumiak and Ellen Deasy, Petitioners–Appellants).
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 130336

996 N.E.2d 176

374 Ill.Dec. 729

Michael John DUMIAK, Petitioner and Respondent,

v.Molly Ann KINZER–SOMERVILLE, Respondent–Appellee (Roman Dumiak and Ellen Deasy, Petitioners–Appellants).

No. 2–13–0336.

Appellate Court of Illinois, Second District.

Sept. 12, 2013.

James C. Olita, Shelly A. Johnson, Olita & Johnson, P.C., Geneva, for appellants.

Brian G. Hiatt, Bourbonnais, for appellee.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

[374 Ill.Dec. 730]¶ 1 Petitioners, Roman Dumiak and Ellen Deasy, previously appealed from the trial court's sua sponte dismissal of their petition seeking custody of their grandson for lack of standing. We reversed and remanded. Petitioners now appeal from the trial court's denial of their custody petition following an evidentiary hearing on the issue of standing. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Roman and Ellen (collectively, grandparents) are the parents of respondent Michael Dumiak. (Michael is not a party to this appeal.) On January 26, 2007, Michael married respondent Molly Kinzer–Somerville, who gave birth to their son, Elliott Dumiak, on February 6, 2007.¹Except for a brief period of time immediately following Elliott's birth, Michael and Molly lived separately. Elliott resided with Molly until August 11, 2008, when he began living with grandparents. On October 31, 2010, Molly picked up Elliott from grandparents and took him to live with her.²

¶ 4 On February 4, 2011, grandparents filed a petition seeking custody of Elliott under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601 (West 2010)).³ Trial on grandparents' custody petition commenced on May 22, 2012.⁴ During the first witness's testimony, the trial court sua sponte dismissed the petition, concluding that grandparents lacked standing because Elliott was living with Molly on the date that the petition was filed. Grandparents appealed.

¶ 5 We reversed and remanded for an evidentiary hearing on the issue of grandparents' standing to seek custody under section 601(b)(2) of the Act (750 ILCS 5/601(b)(2) (West 2010)). Dumiak v. Kinzer–Somerville, 2012 IL App (2d) 120570–U, ¶ 37, 2012 WL 6969125. We held, inter alia, that the trial court had erred in not hearing evidence on the issue of grandparents' standing, because the fact that Elliott was living with Molly on the date that grandparents filed their custody petition was, alone, insufficient to defeat grandparents' standing. Dumiak, 2012 IL App (2d) 120570–U, ¶¶ 23–24, 2012 WL 6969125. We remanded to the trial court with directions to determine whether Elliott was “not in the physical custody” of Molly within the meaning of section 601(b)(2). We instructed that grandparents had to show that they had physical custody of Elliott because Molly voluntarily and indefinitely relinquished custody. We further instructed that the trial court should consider such factors as: who was responsible for Elliott's care prior to grandparents' filing of their petition, how grandparents obtained physical possession of Elliott, and the nature and duration of their possession. Dumiak, 2012 IL App (2d) 120570–U, ¶ 37, 2012 WL 6969125 (citing In re Custody of M.C.C., 383 Ill.App.3d 913, 917, 323 Ill.Dec. 100, 892 N.E.2d 1092 (2008)).

¶ 6 On remand, an evidentiary hearing on grandparents' standing commenced on March 26, 2013. Ellen testified that, after Elliott's birth on February 6, 2007, she saw him on Sundays, holidays, and special occasions. Beginning on March 23, 2007, grandparents also enjoyed more extended visits with Elliott. Between March 23, 2007, and August 11, 2008, grandparents had a total of 17 visits that amounted to 53 overnights at their home in Long Grove, Illinois. Ellen explained that the first overnightvisit occurred after a “frantic” phone call from Molly during which she asked Ellen to pick up Elliott “ ‘right now.’ ” Molly did not tell Ellen when to return Elliott, until the next day when she asked that Elliott be returned the following day. Ellen testified that she and Molly usually agreed in advance as to when Elliott would visit grandparents and when he would return to Molly. Several visits were, however, unplanned, usually the result of a frantic phone call from Molly.

¶ 7 Ellen testified that, on the evening of August 11, 2008, she received a phone call from Molly, “hysterical again,” saying that she had taken Elliott to the Elgin police station because it was a “ ‘safe harbor.’ ” Ellen acknowledged that, at that time, there was an order of protection in effect against Michael that listed Molly and Elliott as the protected persons. ⁵ Ellen went to the police station, where she spoke to a Department of Children and Family Services (DCFS) worker on the phone. Ellen testified that, after the call, she understood that she was to take Elliott home with her. ⁶ Ellen next spoke to Molly on August 13, 2008. Molly thanked Ellen for picking up Elliott and said that she was very happy that Elliott would be living with grandparents. Ellen testified that Molly wanted to start paying grandparents child support and to set up visitation ⁷ between herself and Elliott.

¶ 8 Ellen acknowledged that Molly indicated that one of the reasons she wanted Elliott to live with grandparents was so that she could work on her GED. Otherwise, Molly provided no plan regarding how long Elliott was to live with grandparents. Grandparents never sought guardianship of Elliott and had no written agreements with Molly as to Elliott's living arrangement. Ellen did not believe that any documentation was necessary; they were all working together for Elliott's good.

¶ 9 Ellen further testified that, during the first 60 days that Elliott lived with grandparents, Molly saw him 3 times, supervised by Ellen. Thereafter, Molly's contact with grandparents and Elliott was sporadic. Ellen said that, from December 2008 until October 2010, Molly saw Elliott 16 times, with her visits ranging in length from 1 to 8 overnights. Molly always returned Elliott to grandparents; she never asked to keep him with her. Ellen decided when Molly could see Elliott and encouraged Molly to do so.

¶ 10 Ellen testified that in May 2010 Molly moved to a mobile home in Manteno, Illinois, with her boyfriend, Jason.⁸ The mobile home had a bedroom for Elliott with a bed, toys, a television, and things on the wall. Ellen denied that Molly had proposed a schedule to transition Elliott back to living with Molly or that Molly had told Ellen that she was ready to take Elliott back to live with her. However, Ellen acknowledged that she granted Molly's request for more time with Elliott during the summer of 2010. Molly had Elliott for extended periods of time in July (13 overnights), August (11 overnights), and September (14 overnights). Ellen testified that, for part of the July and September visits, Molly sent Elliott to spend some time alone with Molly's friends, who Molly felt were like Elliott's other grandparents. Ellen also testified that the August visit was supposed to be for 14 nights, but that Molly returned Elliott early. Early in October 2010, Molly had Elliott for a 12–night visit, but she returned him to grandparents for a weekend in the middle of that time. Even after these extended visits, Molly always returned Elliott to grandparents.

¶ 11 Ellen testified that on October 31, 2010, Molly came to grandparents' house with Jason to pick up Elliott for a prearranged visit. Ellen said that Elliott did not want to go with Molly and Jason (transitions had been getting difficult over the summer), but Ellen reassured Elliott that she would pick him up from Molly's on Saturday (November 6, 2010, pursuant to her conversation with Molly). Ellen testified that Molly called her on November 3, 2010, and said that she wanted Elliott to live with her. Ellen asked Molly what she meant and reminded Molly that Ellen had already told Elliott that she was picking him up on Saturday (November 6). Molly told Ellen, “ ‘[W]ell, that's going to change. He's going to live with me and Jason now. Jason's going to be his dad and he's going to live here.’ ” Ellen “kept saying please don't do this.” Ellen testified that, as the conversation continued, Molly said she wanted to keep Elliott for a “ ‘trial period’ ” of about three months “ ‘so that Elliott could spend holidays with his real family.’ ” Ellen told Molly that grandparents were Elliott's “real family” and that it would be hard on Elliott “just to leave where his home is.” Molly did not ask for any of Elliott's belongings. She told Ellen to keep Elliott's bedroom intact at grandparents' house, because Molly planned to have Elliott spend every weekend with grandparents. Ellen testified that, after the November 3 phone conversation, she thought that Elliott would continue to live with grandparents and that “Molly would work through this temporary [ sic ] she wanted to hang on to him for a longer period of time.”

¶ 12 Ellen testified that Elliott did not spend every weekend with grandparents after the November 3, 2010, phone call. Ellen said that Molly “let” Elliott visit grandparents on the weekend of November 12, 2010, during the day on November 27 and December 8, 2010, and for an early Christmas celebration from December 17 to 21, 2010. Grandparents returned Elliott to Molly after each of the four visits. Ellen said that, after the Christmas visit, grandparents “would ask for visits” but Molly “would say no.”

¶ 13 Ellen testified that, despite Molly's November 3, 2010, announcement, Ellen believed that Elliott would still live with grandparents. She explained that she did not keep Elliott after any of the four visits, because she “really thought Molly was going to be changing her mind and that [they] were going to go back to the way it was because it was working fine.” Ellen admitted that Molly never indicated that she would be changing her mind.

¶ 14 Ellen further...