In re Custody of M.C.C.

• Decision Date: 27 June 2008
• Docket Number: No. 1-08-0203.,1-08-0203.
• Citation: 892 N.E.2d 1092,383 Ill.App.3d 913
• Parties: In re CUSTODY OF M.C.C., a Minor (Matthew Miguel C., Petitioner-Appellee, v. Aisha Umer, Respondent (Hameeda Mohamed, Third-Party Defendant and Counterpetitioner-Appellant)).
• Court: United States Appellate Court of Illinois

892 N.E.2d 1092

383 Ill.App.3d 913

In re CUSTODY OF M.C.C., a Minor (Matthew Miguel C., Petitioner-Appellee, v. Aisha Umer, Respondent (Hameeda Mohamed, Third-Party Defendant and Counterpetitioner-Appellant)).

No. 1-08-0203.

Appellate Court of Illinois, First District, First Division.

June 27, 2008.

Gregory A. Adamski, Matthew Vasconcellos, Adamski & Conti, Chicago, IL, for Hameeda Mohamed Third-Party Defendant and Counterpetitioner-Appellant.

Justice GARCIA delivered the opinion of the court:

Matthew C., the biological father of M.C.C., filed a petition for sole custody of M.C.C. after the death of Aisha Umer, M.C.C.'s biological mother. Third-party defendant Hameeda Umer, listed on the caption as Hameeda Mohamed, M.C.C.'s maternal grandmother, contends the trial court erred when it found she did not have standing to pursue a petition for custody of M.C.C. Hameeda also contends the trial court erred when it denied her motion to reconsider. For the reasons that follow, we affirm.

BACKGROUND

On September 14, 2005, Aisha gave birth to M.C.C. At that time, Matthew signed a "Voluntary Acknowledgment of Paternity," confirming he is M.C.C.'s biological father.

On February 11, 2006, Aisha died in a car accident.

On March 3, 2006, Hameeda filed a petition for custody and adoption of M.C.C. in the circuit court of DuPage County. In her petition, Hameeda alleged that M.C.C. had always lived with her and that Matthew was an unfit parent because he had not established a relationship with M.C.C. and did not support M.C.C. financially.

On March 9, 2006, Matthew filed a petition for sole custody of M.C.C. in the circuit court of Cook County. The petition alleged that Matthew had a relationship with M.C.C. and that M.C.C. had lived with Matthew and Aisha from his birth until January of 2006. Though the petition admitted M.C.C. currently resided with Hameeda, Matthew denied transferring physical custody of M.C.C. to Hameeda.

On March 16, 2006, the trial court entered an order finding Matthew was "the natural and biological father" of M.C.C. Though no changes in custody were made at that time, Hameeda was ordered to appear in court on March 27.

On March 27, the trial court set a hearing date for Matthew's custody petition. The court's order stated that should Hameeda fail to appear at the hearing on April 4, 2006, a default judgment could be entered against her.

On March 29, 2006, Hameeda was first served with Matthew's custody petition. On March 31, Hameeda filed a motion to dismiss Matthew's petition based on her earlier filed custody action pending in DuPage County. In an affidavit attached in support of the motion, Hameeda averred that M.C.C. had resided in her home since his birth.

On April 4, 2006, Hameeda and her counsel did not appear in court. The trial court entered an order finding (1) there was no court order naming Hameeda as a third-party defendant, (2) Hameeda had not appeared, (3) Matthew was not served in the DuPage County litigation, (4) Matthew, a resident of Cook County, had filed the instant petition for custody in his county of residence, and (5) Matthew was the only party before the court with standing to have custody of M.C.C. The court granted Matthew custody of M.C.C. and ordered Hameeda to turn M.C.C. over to Matthew that evening.

Hameeda filed an emergency motion to vacate. The trial court stayed the April 4, order until noon the next day.

On April 5, 2006, the trial court entered an agreed order. The court vacated the stay and granted Matthew sole custody of M.C.C., pending further court order. The court ordered Hameeda to turn M.C.C. over to Matthew that afternoon, allowed Hameeda to withdraw her motion to dismiss, and granted Hameeda leave to file a counterpetition for custody and adoption. Discovery on the issue of standing was to start immediately, with the trial court reserving its "ultimate ruling" on the issue of Hameeda's standing.¹

On May 3, 2006, Matthew filed a motion to dismiss the counterpetition, alleging Hameeda lacked standing under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act to pursue her petition for custody of M.C.C. because Hameeda could not show that M.C.C. was not in the continuous physical custody of one of his parents since birth. 750 ILCS 5/601(b)(2) (West 2006).

On December 7, 2006, the trial court began an evidentiary hearing on the issue of Hameeda's standing, which was continued to December 13 and concluded on January 4, 2007.

Hameeda presented her own testimony and that of nine witnesses. Among the witnesses were three of Hameeda's children. Hameeda and the witnesses testified that Hameeda was M.C.C.'s primary caretaker and that M.C.C. had always lived in Hameeda's home. Hameeda also testified that Aisha wanted Hameeda to care for M.C.C. and that Matthew had told her he did not intend to support or care for M.C.C.

Additionally, Hameeda's three children testified that before Aisha's death Matthew had visited M.C.C. between two and four times at Hameeda's home.

Matthew presented his testimony and that of his grandmother. Matthew testified that he had given Aisha money and clothing for M.C.C., that he had paid daily attention to M.C.C., and that Aisha and M.C.C. had slept with him at his grandmother's home numerous times. Matthew also testified that he and Aisha were planning to get married and that he, Aisha, and M.C.C. were a family.

Matthew's grandmother testified that Aisha and M.C.C. had spent time at her home and that Aisha had left M.C.C. there in Matthew's care.

On February 28, 2007, the trial court heard oral argument on the issue of Hameeda's standing.

On June 25, 2007, the trial court issued its ruling. The court found that although Hameeda helped her daughter to care for M.C.C., Aisha had retained physical custody of M.C.C. until her death. The court further found Matthew had "attempted to see his child in spite of the strained relationship" with Aisha's family, had "spent some periods of time" with M.C.C., though the court believed the actual amount was neither as lengthy as Matthew claimed nor as brief as Hameeda alleged, and had asked for physical possession of M.C.C. in a timely manner after Aisha's death.

The trial court dismissed Hameeda's petition for custody, finding Hameeda had not met her burden to prove that Matthew had voluntarily relinquished custody of M.C.C.

On July 25, 2007, Hameeda filed a motion to reconsider, which the trial court denied on December 3, 2007.

On January 25, 2008, this court granted Hameeda leave to file a late notice of appeal.

ANALYSIS

Hameeda contends the trial court erred when it found she did not have standing to pursue her petition for custody of M.C.C. and when it denied her motion to reconsider.²

Matthew has not filed a brief on appeal. We therefore review the issues under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976).

I. Hameeda's Standing

Illinois law recognizes the "superior rights of a natural parent to the care, custody and control of his or her child." In re Marriage of Carey, 188 Ill.App.3d 1040, 1046, 136 Ill.Dec. 518, 544 N.E.2d 1293 (1989). The law presumes the natural parent's right to physical custody of his child is superior to that of a nonparent and that it is in the best interest of the child to be raised by natural parents. In re Marriage of Sechrest, 202 Ill.App.3d 865, 875, 148 Ill.Dec. 615, 560 N.E.2d 1212 (1990). A nonparent has standing to petition for custody of a child "only if [the child] is not in the physical custody of one of his parents." 750 ILCS 5/601(b)(2) (West 2006). "Standing" in this context refers to a statutory requirement the nonparent must meet before the trial court proceeds to the merits of the petition for custody. In re R.L.S., 218 Ill.2d 428, 436, 300 Ill.Dec. 350, 844 N.E.2d 22 (2006).

Whether a child "is not in the physical custody of one of his parents" is not subject to a clear test. Carey, 188 Ill. App.3d at 1047, 136 Ill.Dec. 518, 544 N.E.2d 1293. It is clear, however, that physical custody is not determined based on physical possession of the child at time the custody petition is filed. Physical possession of a child does not necessarily translate into physical custody of that child. See In re Custody of Peterson, 112 Ill.2d 48, 53-54, 96 Ill.Dec. 690, 491 N.E.2d 1150 (1986) (standing "should not turn on" who had the child when the custody petition was filed).

In order to meet the standing requirement, the nonparent cannot merely rely on physical possession of the child. The nonparent must show the biological parents no longer have physical custody of the child because the parents "voluntarily and indefinitely relinquished custody of the child." In re Custody of Ayala, 344 Ill. App.3d 574, 588, 279 Ill.Dec. 456, 800 N.E.2d 524 (2003). When determining whether a voluntary relinquishment of physical custody has taken place, the court considers who cared for the child before the custody petition was filed, how the nonparent gained physical possession, and the "nature and duration" of the possession. In re A.W.J., 316 Ill.App.3d 91, 96, 249 Ill.Dec. 522, 736 N.E.2d 716 (2000), aff'd, 197 Ill.2d 492, 259 Ill.Dec. 392, 758 N.E.2d 800 (2001). Because no one factor controls, the outcome in each case is highly fact dependent. Carey, 188 Ill.App.3d at 1048, 136 Ill.Dec. 518, 544 N.E.2d 1293.

Whether a nonparent has standing to pursue a custody petition is a question of law, reviewed de novo. In re A.W.J., 316 Ill.App.3d at 96, 249 Ill.Dec. 522, 736 N.E.2d 716.

Aisha, as M.C.C's natural mother, had "superior right to the care and custody of * * * her child[ ]." In re Custody of Groff, 332 Ill.App.3d 1108, 1112, 266 Ill.Dec. 387, 774 N.E.2d 826 (2002). The law recognizes that Aisha had physical custody of M.C.C. from birth, unless and until that custody is relinquished or removed by court action. See Groff, 332 Ill.App.3d at 1114, ...