IN RE GUARDIANSHIP OF ALEXANDER O., 2-02-0566.

• Decision Date: 22 January 2003
• Docket Number: No. 2-02-0566.,2-02-0566.
• Citation: IN RE GUARDIANSHIP OF ALEXANDER O., 783 N.E.2d 673, 336 Ill. App.3d 325, 270 Ill.Dec. 711 (Ill. App. 2003)
• Parties: In re GUARDIANSHIP OF ALEXANDER O., a Minor (Mary F., Petitioner-Appellant, v. Seth O., Respondent-Appellee).
• Court: Appellate Court of Illinois

783 N.E.2d 673

336 Ill. App.3d 325

270 Ill.Dec. 711

In re GUARDIANSHIP OF ALEXANDER O., a Minor (Mary F., Petitioner-Appellant, v. Seth O., Respondent-Appellee).

No. 2-02-0566.

Appellate Court of Illinois, Second District.

January 22, 2003.

Richard M. Butera, Butera Law Offices, P.C., Rockford, for Mary F.

John J. Newton, Rockford, for Seth Thomas O.

Justice BOWMAN delivered the opinion of the court:

Mary F. petitioned the circuit court of Winnebago County for custody of her grandson, Alexander O. Seth O., Alexander's father, contested the petition. The trial court awarded custody of Alexander to Seth. Mary appeals, arguing that (1) the trial court applied an incorrect standard in its custody determination, and (2) the court's decision to grant custody to Seth was not in Alexander's best interest.

Mary is Alexander's maternal grandmother. Alexander and his mother, Patricia F., lived with Mary for several years prior to Patricia's death in October 2000. Patricia had sole custody of Alexander and had never been married to Seth. Following Patricia's death, Mary filed a petition for permanent guardianship and custody of Alexander and his younger half-sister, Mia Q., who is not involved in this appeal. Seth moved to dismiss Mary's petition on the ground that she lacked standing.

Mary then filed an amended petition for guardianship and custody, containing one count brought under the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-1 et seq. (West 2000)) and a second count brought under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601 (West 2000)). She subsequently withdrew count I of the amended petition and proceeded solely under the Act. Following a hearing, the court ruled that Mary had standing to seek custody of Alexander and denied Seth's motion to dismiss. Seth filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(5) (166 Ill.2d R. 306(a)(5)), which this court denied.

On February 11, 2002, the court conducted a hearing to determine Alexander's best interests. At the time of the hearing, Alexander was nine years old. He resided with Mary and Mia, who was almost two years old at the time. Alexander's mother, Patricia, committed suicide on October 29, 2000. Mary testified that Alexander had lived with her continuously for the past three years and off and on prior to that time.

After Alexander was born, he, Patricia, and Seth lived with Mary for approximately four months. Then they went to live with other family or friends. After a few months, Patricia and Seth broke up, and Patricia and Alexander moved back in with Mary. They lived with her for a few years. During that time, Seth visited Alexander about twice a month. Mary did not receive any financial contribution from Seth during the time Patricia and Alexander were living with her.

Mary worked during the day and would take care of Alexander in the evenings when Patricia was at work. Patricia had a drinking problem and was unable to keep a steady job. After living with Mary for two years, Patricia and Alexander moved in with Patricia's boyfriend. They broke up after one year because of Patricia's drinking problem. Patricia and Alexander then lived with a friend of Patricia's for about one year, and then with Patricia's sister Suzanne. In 1997, Patricia and Alexander moved back in with Mary and stayed with her from then on. Mary did not know how much contact Seth had with Alexander during the time Alexander did not live with her.

When Patricia and Alexander moved in with Mary in 1997, Patricia had serious drinking and drug problems. Patricia worked as a bartender sometimes but often would get fired because she would not show up for work. Mary paid all of the household expenses including food and utilities. She also bought most of Alexander's clothes.

Seth moved to Georgia in 1998. Occasionally, he sent money orders to Mary. Mary estimated that she received about $600 from him per year for two or three years. Before Seth moved to Georgia, he saw Alexander two or three times a month, sometimes overnight. After the move, Seth talked to Alexander on the telephone once or twice a week. In 1998, Alexander stayed with Seth for the month of August and visited him over Thanksgiving. Seth also spent time with Alexander that Christmas. In 1999 and 2000, Alexander stayed with Seth in Georgia for six weeks each summer and also saw Seth at Christmas.

Since Alexander has been in school, Mary has been responsible for helping him with homework and following his progress. She has also taken over responsibility for communicating with Alexander's teachers since her daughter's death. Alexander is good at math but has some difficulty with reading. He is enrolled in an after-school program in which he gets help with his homework and participates in cultural activities. He is in grief counseling both on an individual basis at school and on a group basis. Mary enrolled him in a camp for children who recently lost a close family member. Alexander is involved in many activities, including basketball and karate.

Mary testified that many of her family members live in the Rockford area, including her two daughters. Her daughter Suzanne lives two houses away from her. Alexander goes to Suzanne's house every day to get ready for school because Mary has to leave early for work. Seth's brother and his family occasionally come to visit Alexander. Mary testified that Alexander has a very loving relationship with his sister, Mia.

Mary expressed her belief that it was in Alexander's best interest to remain in her home. She stated that she has no health problems that would prevent her from caring for Alexander.

Cynthia H., Mary's daughter, testified that she sees Mary and Alexander about once a week. She stated that Alexander and Mary have a loving relationship. On cross-examination, Cynthia testified that she has not seen Alexander interact with his father in Georgia but she knows that he likes his father.

Mary's daughter Suzanne F. testified that Alexander comes to her house every day to get ready for school and she takes him to school. Alexander has a good relationship with Suzanne's daughter, Nicole.

Seth testified that he has lived in Manchester, Georgia, for the past 3½ years. He works as a superintendent for a construction company. He is financially able to support Alexander.

When Alexander comes to stay with Seth they go swimming, fishing and camping. Seth has also taken Alexander to Florida to visit his uncles. Seth's father and grandfather live in Manchester, which has a population of 15,000. There is an elementary school that Alexander would attend if he lived with Seth. He would go to his grandfather's house after school until Seth finished work at 5 p.m. Seth testified that Alexander has a friend in Manchester who lives next door to Seth's grandfather.

Seth testified that when Alexander is with him he tries to spend at least one hour per day working on Alexander's reading skills. He would help Alexander with his homework if Alexander lived with him. Seth further testified that he sent money to both Patricia and Mary for Alexander's support. After Patricia died, he thought it best for Alexander to finish the school year in Rockford. He intended for Alexander to live with him when the school year ended. Seth offered to pay support to Mary after Patricia died, but Mary never accepted his offer.

Seth testified that he has a great relationship with Alexander and loves him very much. He believes it is in Alexander's best interest to live with him because he is able to do more activities with Alexander than Mary. Seth also believes the schools in Georgia are better than Rockford's schools.

On cross-examination, Seth testified that his gross monthly pay is $2,500. When he first moved to Georgia he earned a little bit less because he was not a supervisor. He rents a two-bedroom home, where he lives with his fiancee, Denise. Seth stated that Alexander has a loving relationship with Denise.

At the close of the evidence, Roseann Cannariato, the appointed child representative, advised the court that it was in Alexander's best interest to remain with Mary. Cannariato's recommendation was based upon Alexander's expressed desire to live with Mary and his sister, his strong relationships with them, and the fact that Mary has been his primary caretaker since 1997. Cannariato noted that Alexander has made significant improvement at school due to Mary's involvement.

In making its ruling, the court acknowledged that Mary has been the stabilizing force in Alexander's life and has provided for his needs for many years. The court also noted that Seth has always maintained a relationship with Alexander. Relying on In re Estate of Webb, 286 Ill.App.3d 99, 221 Ill.Dec. 285, 675 N.E.2d 192 (1996), the court ruled that Mary did not overcome the presumption that, as the parent, Seth has a superior right to custody. The court concluded that it was in Alexander's best interest to live with Seth but ordered that Mary retain physical custody of Alexander until the end of the school year. The court denied Mary's motion to reconsider, and this appeal ensued.

Mary's first contention on appeal is that the trial court applied an improper standard when determining who should have custody of Alexander. The court relied on Webb, which involved a guardianship proceeding under the Probate Act, for the proposition that a natural parent has a superior right to custody of a child over a nonparent. Mary contends that the superior right doctrine has no place in a custody determination under the Act and that the court's reliance on Webb was erroneous. Alternatively, she argues that, if Seth's superior right to custody of Alexander was a proper factor to consider, the court placed too much emphasis on that factor.

We begin our analysis by reviewing the applicable statutory provisions. Section 601(b)(2) of the Act (750 ILCS 5/601(b)(2) (West 2...