In re Custody of T.W., 5-06-0019.

Decision Date19 June 2006
Docket NumberNo. 5-06-0019.,5-06-0019.
Citation851 N.E.2d 881
PartiesIn re CUSTODY OF T.W., A Minor Tom W. Weger and Cindy Weger, Petitioners-Appellees, v. Misty D. Weger, Respondent, and Todd Smith, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

James D. Stout, Law Offices of James D. Stout, Bridgeport, for Appellant.

William K. Thomas, Thomas & Lane, Robinson, for Appellees.

Justice GOLDENHERSH delivered the opinion of the court:

Petitioners, Tom W. Weger and Cindy Weger, filed a petition for the custody of their granddaughter, T.W., under the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/601 et seq. (West 2004)). The circuit court of Crawford County granted the petition and awarded petitioners the custody of T.W. On appeal, T.W.'s father, respondent Todd Smith, raises these issues: (1) whether the award of custody violated his due process rights in light of the recent opinion in In re R.L.S., 218 Ill.2d 428, 300 Ill.Dec. 350, 844 N.E.2d 22 (2006), and (2) whether the trial court erred in finding that it was in the best interest of the child to award custody to petitioners. We affirm.

FACTS

On January 13, 2005, petitioners filed a petition for a change of custody regarding their granddaughter T.W. T.W. was born on January 22, 1999. Respondent and Misty D. Weger (T.W.'s mother) were never married. Petitioners are the parents of T.W.'s mother.

Petitioners alleged that T.W.'s mother voluntarily surrendered physical custody of T.W. to them in November 2002 and that T.W. has not been in the physical custody of either parent for more than two years. Respondent filed a response to the petition and also filed a counterpetition for a change of custody. T.W.'s mother filed an entry of appearance consenting to the award of the care and custody of T.W. to petitioners.

The court conducted a bench trial. In addition to testifying on their own behalf, petitioners and respondent presented testimony from several witnesses. The trial court found that T.W. and her mother had lived with her maternal grandparents for the first year and a half of her life. During a period of close to a year, when T.W. was approximately two years old, she and her mother lived at another residence. After this period, T.W. returned to reside with petitioners. T.W. has resided with petitioners since November 2002.

The court noted that respondent did not acknowledge paternity until the Illinois Attorney General instituted an action to obtain child support. The court stated that for approximately two years, respondent had visited with T.W. on a regular schedule of a part of one day on alternate weekends. Respondent had married and recently purchased a new home with three bedrooms. The court noted that respondent's wife was pregnant at the time of the underlying proceeding.

The court found that petitioners had met their burden of showing good cause to overcome the superior rights of respondent. The court described the superior-rights doctrine, upon which it based its decision:

"The parties agree that the standard to be applied in the court's decision is the determination of the best interests of [T.W.] However, as [r]espondent points out, there is a presumption that it is in the child's best interest to be raised by a natural parent. In re Custody of Townsend, 86 Ill.2d 502, 427 N.E.2d 1231 (1981); In re Custody [sic] of Rudsell, 291 Ill.App.3d 626, 684 N.E.2d 421 (4th Dist., 1998 [sic]). A third party seeking custody has the burden of showing good reason to supersede the parent's `superior rights'. In re Guardianship of Alexander O., 336 Ill.App.3d 325, 783 N.E.2d 673 (2nd Dist., 2003). Case law also shows, however, that this superior right is not absolute, Alexander O. ibid. [sic], and serves as only one factor in determining where the best interest of the child lays [sic]. Montgomery v. Roudez, 156 Ill. App.3d 262, 509 N.E.2d 499 (First Dist., 1987); In re Custody of Walters, 174 Ill.App.3d 949, 529 N.E.2d 308 (Third Dist., 1988)."

The court found that under the factors set forth in the Marriage Act, T.W.'s best interests would be served by awarding custody to petitioners. Respondent appeals.

ANALYSIS

Respondent bases his appeal on In re R.L.S., 218 Ill.2d 428, 300 Ill.Dec. 350, 844 N.E.2d 22 (February 2, 2006), which was published after the trial court in this case issued its decision. In In re R.L.S., the Illinois Supreme Court addressed the constitutionality of a section of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-1 et seq. (West 2004)). A review of In re R.L.S. reveals that the supreme court was addressing the safeguards provided in the Probate Act and not setting a benchmark for standards under the Marriage Act.

In In re R.L.S., maternal grandparents petitioned for the guardianship of their minor granddaughter under the Probate Act. R.L.S.'s parents had been separated, and R.L.S. had been living with her mother and maternal great-grandmother at the time her mother died in an automobile accident. The respondent moved to dismiss the petition on the grounds that the petitioners lacked standing. In re R.L.S., 218 Ill.2d at 431, 300 Ill.Dec. 350, 844 N.E.2d at 25.

The trial court initially denied the motion, finding that under section 11-5(b) of the Probate Act (755 ILCS 5/11-5(b) (West 2004)), the petitioners could establish standing if they could rebut the presumption that the respondent was willing and able to take care of R.L.S. on a daily basis. In re R.L.S., 218 Ill.2d at 431, 300 Ill.Dec. 350, 844 N.E.2d at 25. The court then reversed its decision after determining that the petitioners were also required to meet the standing requirements of the Marriage Act. The trial court's decision was based on a line of cases that held that the standing requirement of the Marriage Act was incorporated into the Probate Act by the mutual application of the superior-rights doctrine. The superior-rights doctrine establishes a presumption that parents have the superior right to the care and custody of their children. In re R.L.S., 218 Ill.2d at 432, 300 Ill.Dec. 350, 844 N.E.2d at 26 (citing In re Custody of Peterson, 112 Ill.2d 48, 51, 96 Ill.Dec. 690, 491 N.E.2d 1150, 1151 (1986)). The appellate court reversed and remanded. The supreme court affirmed the appellate court.

On appeal, the respondent argued that the standing requirement of the Marriage Act should be read into the Probate Act. In re R.L.S., 218 Ill.2d at 433-34, 300 Ill.Dec. 350, 844 N.E.2d at 26. The supreme court began its analysis by discussing the cases relied on by the respondent. In re Person & Estate of Newsome, 173 Ill.App.3d 376, 379, 123 Ill.Dec. 61, 527 N.E.2d 524, 525 (1988) (Newsome); In re Marriage of Haslett, 257 Ill.App.3d 999, 1006, 195 Ill.Dec. 874, 629 N.E.2d 182, 187 (1994); In re Person & Estate of Barnhart, 232 Ill.App.3d 317, 320, 174 Ill.Dec. 26, 597 N.E.2d 1238, 1240 (1992). The court focused on Newsome. Newsome was premised on the superior rights of parents to the custody and control of their children. The Probate Act explicitly recognizes the doctrine in section 11-7, which states in part that "`[i]f * * * the surviving parent is competent to transact his own business and is a fit person, he is'" entitled to the custody of his child. In re R.L.S., 218 Ill.2d at 434, 300 Ill.Dec. 350, 844 N.E.2d at 27 (quoting 755 ILCS 5/11-7 (West 2004)). The Marriage Act also recognizes the superior rights of parents, in the standing requirement 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.'" In re R.L.S., 218 Ill.2d at 434, 300 Ill.Dec. 350, 844 N.E.2d at 27 (quoting 750 ILCS 5/601(b)(2) (West 2004)). Newsome and the other precedent relied on by the respondent held that the incorporation of the superior-rights doctrine in both acts meant that a petitioner under the Probate Act was also required to meet the standing requirement of the Marriage Act. Newsome, 173 Ill.App.3d at 379, 123 Ill.Dec. 61, 527 N.E.2d at 525.

In re R.L.S. noted that after Newsome was decided, section 11-5(b) of the Probate Act was amended to add a standing requirement. In re R.L.S., 218 Ill.2d at 435, 300 Ill.Dec. 350, 844 N.E.2d at 27. The amended section 11-5(b) provides that a court lacks jurisdiction to proceed on a guardianship petition if the minor has a parent whose whereabouts are known, who is willing and able to make child-care decisions, and who objects to the petition. 755 ILCS 5/11-5(b) (West 2004). In re R.L.S. found that, with this amendment, the legislature had created a standing requirement for nonparents under the Probate Act to take the place of the incorporated provisions of the Marriage Act. In re R.L.S., 218 Ill.2d at 434, 300 Ill.Dec. 350, 844 N.E.2d at 27. The court stated:

"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. 750 ILCS 5/601(b)(2) (West 2004); [In re Custody of] Peterson, 112 Ill.2d at 52[, 96 Ill. Dec. 690, 491 N.E.2d at 1152]. To have standing to proceed on a petition for guardianship under the Probate Act, when the minor has a parent whose whereabouts are known, the petitioner must rebut the statutory presumption that the parent is `willing and able to make and carry out day-to-day child[-]care decisions concerning the minor.' 755 ILCS 5/11-5(b) (West 2004); see [In re Estate of] Johnson, 284 Ill. App.3d [1080,] 1091[, 220 Ill.Dec. 474, 673 N.E.2d 386, 393 (1996)]. It is presumed that, when enacting new legislation, the legislature acts with full knowledge of previous judicial decisions addressing the subject matter of that legislation. People v. Jones, 214 Ill.2d 187, 199[, 291 Ill.Dec. 663, 824 N.E.2d 239, 246] (2005). By enacting a standing requirement for...

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