Marriage of Sechrest, In re

• Court: Appellate Court of Illinois
• Writing for the Court: KNECHT
• Citation: Marriage of Sechrest, In re, 560 N.E.2d 1212, 202 Ill.App.3d 865 (Ill. App. 1990)
• Decision Date: 26 September 1990
• Docket Number: No. 4-89-0654,4-89-0654
• Parties: , 148 Ill.Dec. 615 In re the MARRIAGE OF Joel L. SECHREST, Petitioner-Appellee, and Vicki L. Sechrest, Respondent-Appellant (Jeffrey Kennedy and Doris Kennedy, Third Party Respondents-Appellees).

Page 1212

560 N.E.2d 1212

202 Ill.App.3d 865, 148 Ill.Dec. 615

In re the MARRIAGE OF Joel L. SECHREST, Petitioner-Appellee and Vicki L. Sechrest, Respondent-Appellant (Jeffrey Kennedy and Doris Kennedy, Third Party Respondents-Appellees).

No. 4-89-0654.

Appellate Court of Illinois Fourth District.

Sept. 26, 1990.

Rehearing Denied Oct. 29, 1990.

Denise L. Church, Prairie State Legal Services, Inc., Bloomington, Bernard H. Shapiro, Prairie State Legal Services, Inc., Rockford, for respondent-appellant.

Curtis W. Myers, Law Offices of Curtis W. Myers, Pontiac, for petitioner-appellee.

Presiding Justice KNECHT delivered the opinion of the court:

Vicki Sechrest appeals from an order of the circuit court of Livingston County awarding permanent custody of her 4 1/2 year old daughter, A.M.S., to her sister-in-law Doris Kennedy. Vicki and her husband Joel Sechrest were still married when he requested Doris take A.M.S. and care for her. Vicki never consented to this arrangement. Doris and her husband Jeff were permitted to intervene in Vicki and Joel's dissolution of marriage action to seek temporary custody of A.M.S. Three years later the circuit court awarded permanent custody of A.M.S. to Doris. The issues on appeal are whether Doris and Jeff had standing, under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1987, ch. 40, par. 601), to intervene in the dissolution proceedings to seek custody of A.M.S., whether Vicki waived the standing issue by failing to raise it prior to her post-trial motion, and whether the circuit court abused its discretion when it awarded permanent custody to Doris Kennedy.

Vicki and Joel Sechrest were married April 27, 1985. Their only child, A.M.S., was born on November 19, 1985. She is now 4 1/2 years old. Vicki and Joel separated in May of 1986. Joel left the marital residence on a Friday. The following day Vicki took A.M.S. to a baby-sitter, where she remained overnight, while Vicki visited her out-of-town boyfriend. Vicki returned for a few hours on Sunday afternoon but left Sunday evening, again leaving A.M.S. with the baby-sitter. Although Vicki intended to return for A.M.S. on Monday, her boyfriend had car trouble and she did not return until Wednesday. Vicki did notify the baby-sitter she could not return Monday evening.

Monday evening Joel learned of Vicki's absence and took A.M.S. from the baby-sitter to his girlfriend's house. On Wednesday he contacted his sister Doris and asked her to take A.M.S. He also requested she and her husband consider taking custody of the child. Believing Joel and Vicki were each incapable of adequately caring for A.M.S., Doris and Jeff filed a petition to adopt her.

Joel filed a petition for dissolution of marriage on August 12, 1986. His petition specifically requested the Kennedys be awarded temporary custody of A.M.S.

A temporary custody hearing was held on November 6 and 7, 1986. The Kennedys voluntarily dismissed their adoption petition and were allowed to intervene in the dissolution proceeding and seek custody of A.M.S. Vicki's attorney made no objection to their intervention. The Kennedys filed a petition for custody on December 2, 1986. The circuit court entered an order awarding them temporary custody on December 3, 1986, with provisions for visitation by Vicki. A judgment of dissolution of marriage was entered September 24, 1987.

The circuit court held permanent custody hearings on May 24, May 31, June 1, and June 5, 1989. The court entered an order awarding permanent custody to Doris on June 7, 1989. Judge Frobish declined to award Vicki permanent custody, stating,

"The instability in VICKIE's [sic ] life, which resulted in temporary custody of [A.M.S.] being awarded to the KENNEDYS in November 1986, continues. Although VICKIE [sic ] is not an unfit mother and has demonstrated love for her daughter, she continues to show poor judgment in her lifestyle and in her choice of relationships. She has not shown a strong family support system as has been shown by the KENNEDYS. Finances continue to be a problem.

The Court further FINDS that it is in the best interest of [A.M.S.] that custody be awarded to DORIS KENNEDY."

Vicki filed a post-trial motion on June 27, 1989, and a hearing was held on the motion on July 18, 1989. The motion included an assertion the Kennedys did not have standing to petition the circuit court for custody of A.M.S. because, when they removed the child from the baby-sitter, she was still in Vicki's custody and Vicki never relinquished control of her to the Kennedys. The court entered an order denying the relief sought in the post-trial motion on August 7, 1989, and Vicki filed her notice of appeal on August 21, 1989.

Section 601(b)(2) of the Act states, in part:

"A child custody proceeding is commenced in the court:

* * * * * *

(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." (Ill.Rev.Stat.1987, ch. 40, par. 601(b)(2).)

On appeal Vicki contends the Kennedys lacked standing to petition for custody of A.M.S. The Kennedys bear the burden of proving standing. In re Custody of Butler (1989), 192 Ill.App.3d 135, 137, 139 Ill.Dec. 197, 199, 548 N.E.2d 582, 584.

A nonparent seeking custody of a child pursuant to section 601 must have standing.

"In 1986, the Illinois Supreme Court held that nonparents proceeding under section 601(b)(2) of the Act (Ill.Rev.Stat.1985, ch. 40, par. 601(b)(2)) must first satisfy a standing requirement before the court may consider them for the legal custody of a child. (In re Custody of Peterson (1986), 112 Ill.2d 48, 52 [96 Ill.Dec. 690, 692], 491 N.E.2d 1150, 1152.) The meaning of the term 'standing' as used in Peterson is distinct from the definition familiar to most students of the law. Generally, standing connotes whether a litigant has a justiciable interest in a controversy, and the standing of the litigants before the court is one of the components of the court's subject matter jurisdiction. The term 'standing' as used in Peterson involves a threshold issue of whether a parent has custody of a child for purposes of satisfying the requirements of section 601(b)(2) of the Act." In re Custody of McCuan, 176 Ill.App.3d 421, 425 , 531 N.E.2d 102, 105.

The nonparent must show the child is not in the physical custody of one of her parents. (Ill.Rev.Stat.1987, ch. 40, par. 601(b)(2); In re Custody of Peterson (1986), 112 Ill.2d 48, 53, 96 Ill.Dec. 690, 692, 491 N.E.2d 1150, 1152; In re Marriage of Carey (1989), 188 Ill.App.3d 1040, 1047, 136 Ill.Dec. 518, 522, 544 N.E.2d 1293, 1297; Butler, 192 Ill.App.3d at 136, 139 Ill.Dec. at 198, 548 N.E.2d at 583; In re Marriage of Nicholas (1988), 170 Ill.App.3d 171, 175, 120 Ill.Dec. 698, 701, 524 N.E.2d 728, 731.) Once the nonparent has made such a showing and established standing, the court determines custody using the "best interest of the child" standard. In re Custody of Menconi (1983), 117 Ill.App.3d 394, 396, 73 Ill.Dec. 10, 12, 453 N.E.2d 835, 837; Carey, 188 Ill.App.3d at 1046, 136 Ill.Dec. at 522, 544 N.E.2d at 1297; Peterson, 112 Ill.2d at 53, 96 Ill.Dec. at 692, 491 N.E.2d at 1152.

A nonparent who fails to establish standing under section 601 must seek custody under either 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.). Under these statutes, the nonparent must prove the natural parents unfit, a much higher standard of proof. Peterson, 112 Ill.2d at 52, 96 Ill.Dec. at 692, 491 N.E.2d at 1152; In re Marriage of Gustafson (1989), 181 Ill.App.3d 472, 475, 130 Ill.Dec. 148, 149, 536 N.E.2d 1359, 1360; In re Custody of O'Rourke (1987), 160 Ill.App.3d 584, 587, 112 Ill.Dec. 610, 613, 514 N.E.2d 6, 7-8; Menconi, 117 Ill.App.3d at 396, 73 Ill.Dec. at 12, 453 N.E.2d at 837-38.

The key to the standing issue is whether A.M.S. was in the physical custody of one of her parents when Doris and Jeff intervened in the dissolution proceedings.

"A determination of when a child is 'not in the physical custody of one of his parents' so as to create standing in a nonparent seeking custody under the Dissolution Act is not subject to any clear litmus test or dependent upon any single fact such as who is in actual physical possession of the child at the time the petition for custody modification is filed." Carey, 188 Ill.App.3d at 1047, 136 Ill.Dec. at 522, 544 N.E.2d at 1297.

Peterson makes clear the standing requirement does not turn on who is in physical possession of the child when the custody petition is filed. "To hold differently would be to encourage abductions of minors in order to satisfy the literal terms of the standing requirement and would, in reality, defeat the statutory intendment." (Peterson, 112 Ill.2d at 54, 96 Ill.Dec. at 692-93, 491 N.E.2d at 1152-53.) The determination of whether a child is in a person's physical custody has included factors such as how the child came to be in the nonparent's physical possession and the duration of the possession. In re Marriage of Santa Cruz (1988), 172 Ill.App.3d 775, 783, 122 Ill.Dec. 759, 764, 527 N.E.2d 131, 136.

The Second District affirmed the circuit court's finding the nonparent had standing in In re Marriage of Carey (1989), 188 Ill.App.3d 1040, 136 Ill.Dec. 518, 544 N.E.2d 1293. The 12-year-old child in that case lived with his natural mother and father until he was 6. His parents divorced and his father obtained legal and physical custody and subsequently remarried. Six years later his father died. The child's stepmother petitioned for custody as did the natural mother. The circuit court determined the stepmother had standing to petition for custody and the appellate court affirmed. The court based its decision in part on the mother/son relationship established between...