Marriage of Gustafson, In re, 4-88-0906

• Court: Appellate Court of Illinois
• Writing for the Court: LUND
• Citation: Marriage of Gustafson, In re, 536 N.E.2d 1359, 181 Ill.App.3d 472, 130 Ill.Dec. 148 (Ill. App. 1989)
• Decision Date: 06 April 1989
• Docket Number: No. 4-88-0906,4-88-0906
• Parties: , 130 Ill.Dec. 148 In re the MARRIAGE OF Randy GUSTAFSON, Petitioner-Appellee (Paula Gustafson, Respondent; Charles Robert Stone and Mildred Helen Stone, Intervenors-Appellants).

Page 1359

536 N.E.2d 1359

181 Ill.App.3d 472, 130 Ill.Dec. 148

In re the MARRIAGE OF Randy GUSTAFSON, Petitioner-Appellee (Paula Gustafson, Respondent; Charles Robert Stone and Mildred Helen Stone Intervenors-Appellants).

No. 4-88-0906.

Appellate Court of Illinois Fourth District.

April 6, 1989.

Arthur M. Lerner, Lerner & Kirchner, Champaign, for intervenors-appellants.

Ronald E. Boyer, Boyer & Thompson, Ltd., Watseka, for petitioner-appellee.

Justice LUND delivered the opinion of the court:

The circuit court of Ford County denied the petition of Charles Robert Stone and Mildred Helen Stone for intervention and custody, under the authority of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1987, ch. 40, par. 601(b)(2)), in a custody modification proceeding, wherein petitioner Randy Gustafson, former son-in-law of the Stones, was seeking custody of his daughters, Shannon Michelle Gustafson and Sarah Lindsey Gustafson, from respondent Paula Gustafson, his former wife. The Stones appeal.

This is a case of first impression. Section 601 of the Act provides, and has provided since the October 31, 1977, effective date of the Act, as follows:

"Jurisdiction--Commencement of Proceeding. (a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 4 of the Uniform Child Custody Jurisdiction Act as adopted by this State.

(b) A child custody proceeding is commenced in the court:

(1) by a parent, by filing a petition:

(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or

(ii) for custody of the child, in the county in which he is permanently resident or found; or (2) by a person other than a parent, 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.

(c) Notice of a child custody proceeding shall be given to the child's parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties." Ill.Rev.Stat.1987, ch. 40, pars. 601(a), (b), (c).

The Stones contend they have standing to intervene and seek custody under section 601(b)(2), arguing that respondent no longer has physical custody of Shannon and Sarah, having transferred physical custody to the Stones. They further contend the dissolution judgment filed June 10, 1983, when awarding custody to respondent, effectively deprived petitioner of physical custody, although granting reasonable visitation rights and finding both father and mother fit parents. The Stones alternatively contend petitioner gave up physical custody status by acquiescing in the Stones taking physical custody.

Courts have held that grandparents do not have standing under section 601(b)(2) where a custodial parent dies while living, together with the child, at the grandparents' residence, and where the noncustodial parent has provided support and visitation. (In re Custody of Peterson (1986), 112 Ill.2d 48, 96 Ill.Dec. 690, 491 N.E.2d 1150; In re Custody of O'Rourke (1987), 160 Ill.App.3d 584, 112 Ill.Dec. 610, 514 N.E.2d 6.) Hearings have been required when there was some doubt whether a parent had surrendered physical custody, with the burden placed upon the nonparent intervenor to establish the required allegation of no parent having physical custody. In re Marriage of Santa Cruz (1988), 172 Ill.App.3d 775, 122 Ill.Dec. 759, 527 N.E.2d 131; In re Marriage of Nicholas (1988), 170 Ill.App.3d 171, 120 Ill.Dec. 698, 524 N.E.2d 728.

A custody dispute litigated under section 601(b)(2) would be decided upon the best interests of the children. If the Stones were to seek custody under the provisions of the Juvenile Court Act of 1987 (Ill.Rev.Stat.1987, ch. 37, par. 801-1 et seq.) or the Adoption Act (Ill.Rev.Stat.1987, ch. 40, par. 1501 et seq.), they would be burdened with a comparatively strict standard of those acts in contrast to the best interests test. See Santa Cruz, 172 Ill.App.3d at 782, 122 Ill.Dec. at 763, 527 N.E.2d at 135.

The facts presented by the record are relatively simple. Shannon, age 12, and Sarah, age 7, are the children of petitioner and respondent. A Ford County circuit court dissolution judgment, filed June 10, 1983, awarded custody of the two girls to respondent, subject to petitioner's right of reasonable visitation. Both parents were found to be fit parents. Petitioner was to pay $165 per month per child for child support. This amount was increased to $180 per month per child as of January 1, 1987, pursuant to an order entered October 21, 1987.

Mildred Helen Stone and Charles Robert Stone are the parents of respondent. Respondent has not lived with her parents since graduating from high school. On August 15, 1988, respondent delivered Shannon and Sarah to the Stones in Paxton, Illinois, saying she could no longer care for them. The two girls began living with the Stones, with the Stones providing for them. Petitioner, who lives in Gilman, Illinois, has paid support and, prior to August 15, exercised his visitation rights. On October 11, 1988, after discovery of the transfer by respondent, petitioner filed a petition for modification of custody. The Stones, in turn, filed a "Petition to Intervene and for Custody" on October 19, 1988. Following a hearing on November 7, 1988, the trial court, on November 17, 1988, entered an order denying the Stones standing under section 601(b)(2), saying, in part:

"In this case, the mother was awarded custody in the marital settlement agreement adopted by the court and incorporated in the judgment of dissolution entered on June 10, 1983. She lived separately from her parents and had the children with her until late August, 1988 when she told her parents she could not care for them and asked them to take care of the children. At that time the children moved into their grandparents' home and were enrolled in the fall semester of public school from that address. On October 11, 1988, the father filed a petition seeking, inter alia, a change of custody to him.

The mother had legal custody from June 10, 1983, forward. Legal custody cannot be changed except by court order. The grandparents came into physical possession of the children through the fortuitous occurrence of the mother leaving them there. This is exactly the kind of circumstance the cases indicate the statute does not extend standing to. A party cannot come into possession of the children by abduction or collusion and thus obtain standing. Such a rule would encourage that conduct and discourage the statutory intent.

There may well be circumstances where one parent leaves children with third parties and the third parties obtain physical custody through that act. Perhaps the whereabouts of the other parent is unknown, or the other parent is incapacitated, or dead, or simply unwilling to accept custody. Under those circumstances the third party could well be found to have physical custody and thus have standing under the statute to petition for legal custody. Intervening petitioners have offered no evidence that this is that case.

The petition for leave to intervene is denied."

Regardless of the Stones' allegation, the evidence does not indicate petitioner acquiesced in, or agreed to, the transfer of the two girls to the Stones.

On appeal, we are confronted with defining "physical custody" as it is used and intended to be used under section 601(b)(2).

Our supreme court's only pronouncement relating to section 601(b)(2) standing is set forth in Peterson (112 Ill.2d 48, 96 Ill.Dec. 690, 491 N.E.2d 1150), where the dissolution judgment found both parents fit, but awarded custody to the mother. The mother, while terminally ill, lived with her parents who assisted in the care of the child of the parties. The father regularly exercised his visitation and lived in the same block. Upon the mother's death, the grandparents sought custody, arguing standing under section 601(b)(2). The supreme court held that the father had physical custody of the child upon the mother's death, and denied the grandparents' standing claim.

The Peterson decision, at first blush, would appear to repudiate the Illinois decisions holding that upon the death of the custodial parent, the noncustodial parent is not immediately vested with custody. (See Milenkovic v. Milenkovic (1981), 93 Ill.App.3d 204, 48 Ill.Dec. 618, 416 N.E.2d 1140; Mackie v. Mackie (1967), 88 Ill.App.2d 61, 232 N.E.2d 184.) However, in Milenkovic, the custodial mother was murdered, allegedly by the father, and the children were placed in the temporary custody of a nonparent. In Mackie, the mother and child lived with the grandparent from June 1960 until the mother's death on October 5, 1964, and the child continued to live with the grandmother thereafter. From June 1960 until October 1964, the father had only seen the child on one occasion and, then, by chance.

The Second District opinion in In re Custody of McCarthy (1987), 157 Ill.App.3d 377, 109 Ill.Dec. 687, 510 N.E.2d 555, appeared to carry on the Milenkovic and Mackie rule, while recognizing the Peterson case. The McCarthy court said:

"To have standing under section 601(b)(2), petitioners must prove that, upon the death of Yvonne McCarthy on July 12, 1985, Nicole and Clayton, Jr., were not in the physical custody of the respondent. It has long been the law in Illinois that the death of a custodial parent after a final divorce judgment has been entered does not automatically revert custody to the surviving parent. (Milenkovic v. Milenkovic (1981), 93 Ill.App.3d 204, 212 [48 Ill.Dec. 618, 416 N.E.2d 1140].) When a divorced custodial parent dies, the court has the power to determine who should have custody of a child even...