No. 2--02--0566

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

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

Mary is Alexander's maternal grandmother. Alexander and hismother, Patricia F., lived with Mary for several years prior toPatricia's death in October 2000. Patricia had sole custody ofAlexander and had never been married to Seth. Following Patricia'sdeath, Mary filed a petition for permanent guardianship and custodyof Alexander and his younger half-sister, Mia Q., who is notinvolved in this appeal. Seth moved to dismiss Mary's petition onthe ground that she lacked standing.

Mary then filed an amended petition for guardianship andcustody, containing one count brought under the Probate Act of 1975(Probate Act) (755 ILCS 5/11--1 et seq. (West 2000)) and a secondcount brought under section 601 of the Illinois Marriage andDissolution of Marriage Act (Act) (750 ILCS 5/601 (West 2000)). She subsequently withdrew count I of the amended petition andproceeded solely under the Act. Following a hearing, the courtruled that Mary had standing to seek custody of Alexander anddenied Seth's motion to dismiss. Seth filed a petition for leaveto 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 todetermine Alexander's best interests. At the time of the hearing,Alexander was nine years old. He resided with Mary and Mia, whowas almost two years old at the time. Alexander's mother,Patricia, committed suicide on October 29, 2000. Mary testifiedthat Alexander had lived with her continuously for the past threeyears and off and on prior to that time.

After Alexander was born, he, Patricia, and Seth lived withMary for approximately four months. Then they went to live withother family or friends. After a few months, Patricia and Sethbroke up, and Patricia and Alexander moved back in with Mary. Theylived with her for a few years. During that time, Seth visitedAlexander about twice a month. Mary did not receive any financialcontribution from Seth during the time Patricia and Alexander wereliving with her.

Mary worked during the day and would take care of Alexander inthe evenings when Patricia was at work. Patricia had a drinkingproblem and was unable to keep a steady job. After living withMary for two years, Patricia and Alexander moved in with Patricia'sboyfriend. They broke up after one year because of Patricia'sdrinking problem. Patricia and Alexander then lived with a friendof Patricia's for about one year, and then with Patricia's sisterSuzanne. In 1997, Patricia and Alexander moved back in with Maryand stayed with her from then on. Mary did not know how muchcontact Seth had with Alexander during the time Alexander did notlive with her.

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

Seth moved to Georgia in 1998. Occasionally, he sent moneyorders to Mary. Mary estimated that she received about $600 fromhim 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 ortwice a week. In 1998, Alexander stayed with Seth for the month ofAugust and visited him over Thanksgiving. Seth also spent timewith Alexander that Christmas. In 1999 and 2000, Alexander stayedwith Seth in Georgia for six weeks each summer and also saw Seth atChristmas.

Since Alexander has been in school, Mary has been responsiblefor helping him with homework and following his progress. She hasalso taken over responsibility for communicating with Alexander'steachers since her daughter's death. Alexander is good at math buthas some difficulty with reading. He is enrolled in an after-school program in which he gets help with his homework andparticipates in cultural activities. He is in grief counselingboth on an individual basis at school and on a group basis. Maryenrolled him in a camp for children who recently lost a closefamily member. Alexander is involved in many activities, includingbasketball and karate.

Mary testified that many of her family members live in theRockford area, including her two daughters. Her daughter Suzannelives two houses away from her. Alexander goes to Suzanne's houseevery day to get ready for school because Mary has to leave earlyfor work. Seth's brother and his family occasionally come to visitAlexander. Mary testified that Alexander has a very lovingrelationship with his sister, Mia.

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

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

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

Seth testified that he has lived in Manchester, Georgia, forthe past 3