No. 3-04-0220

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Plaintiff, Marsha Timmons, appeals the LaSalle County Circuit Court's dismissal of herpetition for guardianship of R.L.S. (born August 27, 1997) for lack of standing. For the reasonsthat follow, we reverse and remand to the circuit court for further proceedings.

BACKGROUND

The relevant facts are not in dispute. Ronald and Karyn S. are R.L.S.'s parents. Karyndied in an automobile accident in December 2002. At the time of her death, Karyn and R.L.S.lived with Karyn's maternal grandmother in Illinois and Ronald lived in Florida. The day aftertheir daughter's death, Karyn's parents, Marsha and Raymond Timmons, filed a petition forguardianship of R.L.S. pursuant to section 11-5 of the Probate Act of 1975 (Probate Act) (755ILCS 5/11-5 (West 2002)). Ronald filed a motion to dismiss, which the circuit court denied. Thecourt appointed petitioners temporary guardians. Following a hearing, the court held petitionerslacked standing to petition for guardianship and dismissed the petition. However, R.L.S.continues to reside with petitioners pursuant to a stay of the court's order. Petitioners appealed,and in November 2004 this court denied Ronald's request for dissolution of that stay. The soleissue before this court is whether petitioners had standing to petition for guardianship.

ANALYSIS

The relevant provisions of the Probate Act read, in pertinent part, as follows:

"(a) Upon the filing of a petition for the appointment of a guardian or on its ownmotion, the court may appoint a guardian of the estate or of both the person andestate, of a minor, or may appoint a guardian of the person only of a minor or minors, as the court finds to be in the best interest of the minor or minors.

* * *

(b) The court lacks jurisdiction to proceed on a petition for the appointment of aguardian of a minor if (I) the minor has a living parent, adoptive parent oradjudicated parent, whose parental rights have not been terminated, whosewhereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consentto the appointment or, after receiving notice of the hearing under Section 11-10.1,fail to object to the appointment at the hearing on the petition or (ii) there is aguardian for the minor appointed by a court of competent jurisdiction. There shallbe a rebuttable presumption that a parent of a minor is willing and able to makeand carry out day-to-day child care decisions concerning the minor, but thepresumption may be rebutted by a preponderance of the evidence." 755 ILCS5/11-5 (West 2002).

"If both parents of a minor are living and are competent to transact their ownbusiness and are fit persons, they are entitled to the custody of the person of theminor and the direction of his education. If one parent is dead and the survivingparent is competent to transact his own business and is a fit person, he is similarlyentitled. The parents have equal powers, rights and duties concerning the minor. Ifthe parents live apart, the court for good reason may award the custody andeducation of the minor to either parent or to some other person." 755 ILCS 5/11-7 (West 2002).

The circuit court stated it denied Ronald's motion to dismiss the petition because it "wasunder the impression that standing depended solely upon whether Petitioners can rebut thepresumption that [Ronald] was willing and able to make day to day decisions concerning[R.L.S.]" but that, following hearing on the petition, it now believed "that the determination of theissue of standing in guardianship proceedings under the Probate Act is the same as the standingrequirement of the Marriage Act." The court held that this "standing requirement" was stated insection 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750ILCS 5/601(b)(2) (West 2002)), which states that a child custody proceeding may be commencedby a person other than a parent "only if [the child] is not in the physical custody of one of hisparents." 750 ILCS 5/601(b)(2) (West 2002). Based on the judicial construction of "physicalcustody" for purposes of that section (see In re Custody of Peterson, 112 Ill. 2d 48, 53-54, 491N.E.2d 1150, 1152 (1986) ("the standing requirement under section 601(b)(2) should not turn onwho is in physical possession, so to speak, of the child at the moment of filing the petition forcustody")), the court concluded petitioners lacked standing.

Petitioners do not argue that R.L.S. was not in Ronald's "physical custody." Instead,petitioners argue the circuit court erroneously applied the standing requirement in section601(b)(2) to a guardianship proceeding under the Probate Act. The circuit court determined thatthe requirements of section 601(b)(2) of the Marriage Act must be satisfied in a proceeding undersection 11-5 of the Probate Act based on In re Person and Estate of Benny A. Newsome, 173 Ill.App. 3d 376, 527 N.E.2d 524 (1988). The Newsome court held that the standing requirement insection 601(b)(2) incorporated into the Marriage Act the superior rights doctrine, which statesthat parents have the superior right to the care, custody, and control of their children. See Troxelv. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49, 56-57, 120 S. Ct. 2054, 2060 (2000) ("It iscardinal with us that the custody, care and nurture of the child reside first in the parents, whoseprimary function and freedom include preparation for obligations the state can neither supply norhinder"). The Newsome court also found that the Probate Act similarly incorporated the superiorrights doctrine through section 11-7 of the Probate Act. Newsome, 173 Ill. App. 3d at 379, 527N.E.2d at 525, citing In re Custody of Townsend, 86 Ill. 2d 502, 509-10, 427 N.E.2d 1231, 1235(1981). Finally, the Newsome court concluded that "[b]ecause of the statutory adoption of thesuperior right doctrine into the Probate Act *** the standing requirement of the Marriage Actapplies equally to the guardianship proceedings of the Probate Act." Newsome, 173 Ill. App. 3dat 379, 527 N.E.2d at 525.

Newsome engrafts language from the Marriage Act into the Probate Act, ostensibly for thepurpose of incorporating the superior rights doctrine into the Probate Act. However, theNewsome court recognized that the Probate Act already incorporates the superior rights doctrine,through section 11-7 (755 ILCS 5/11-7 (West 2002)). See Townsend, 86 Ill. 2d at 509, 427N.E.2d at 1235. Section 601(b)(2) of the Marriage Act arguably provides greater protection toparents' rights by creating a prerequisite (that the minor not be in the custody of one of itsparents) to a third party instituting custody proceedings. The legislature may have concluded thatsuch additional protection was not required in proceedings under the Probate Act, "which is onlytriggered upon the death of a parent." In re Petition of Otakar Kirchner, 164 Ill. 2d 468, 484,649 N.E.2d 324, 332 (1995). Regardless, how the superior rights doctrine is effectuated in oneact is irrelevant to application of the same doctrine in another.

In Peterson, 112 Ill. 2d at 52, 491 N.E.2d at 1152, the court discussed the ways in whichthe "superior right of the natural parent is recognized and embodied in our statutory law." Thecourt stated as follows:

"Under the Juvenile Court Act, a child may not be placed in the custody of anonparent unless the parents are found to be 'unfit.' Similarly, pursuant toprovisions in the Adoption Act, consent of the natural parents is necessary foradoption of a child unless the parents are judged 'unfit.'" Peterson, 112 Ill. 2d at52, 491 N.E.2d at 1152.

However, under the Marriage Act, nonparents must show that the child is not in the physicalcustody of one of his parents. "When this requirement has been met, the nonparent will beconsidered for legal custody of the child under the 'best interest of the child' standard withoutnecessity of first establishing the unfitness of the natural parents." (Citations omitted.) Peterson,112 Ill. 2d at 53, 491 N.E.2d at 1152. The Juvenile Court Act requires "that the minor child befound to be delinquent, in need of supervision, or neglected or dependent before the child couldbe taken from the custody of its parents." Townsend, 86 Ill. 2d at 509, 427 N.E.2d at 1235.

From these holdings by our supreme court, we conclude that the showing required beforethe State will infringe upon the fundamental right of a parent to the care, custody, and control ofhis child is controlled by statute and, therefore, depends upon the statutory action involved. SeeIn re Marriage of Roberts, 271 Ill. App. 3d 972, 981, 649 N.E.2d 1344, 1350 (1995) ("bestinterests of the child" is the basis for determining custody under the Marriage Act, while parents'rights can be set aside more easily under the Probate Act but a stronger showing than bestinterests is required to remove custody from a natural parent under the Juvenile Court Act of1987). The legislature is empowered to make such determinations so long as its procedures meetthe requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599,606, 102 S. Ct. 1388, 1395 (1982) (discussing procedural protections in terminationproceedings). In this context, due process requires a presumption in favor of the natural parent. See Wickham v. Byrne, 199 Ill. 2d 309, 320-21, 769 N.E.2d 1, 7-8 (2002), citing Troxel, 530U.S. at 72-73, 147 L. Ed. 2d at 61, 120 S. Ct. at 2064.

We believe the Newsome court erred in judicially redrafting section 11-7 of the ProbateAct to include language from section 601(b)(2) of the Marriage Act. The requirement that theminor not be in the custody of a parent does not apply to a petition for guardianship under theProbate Act. Section 11-7's requirement that the parent be found unfit or, if the parents livedapart, that good cause exists to award custody to some other person, provides sufficientprotection for parents' superior right to the custody and control of their children within thecontext of proceedings pursuant to the Probate Act. In making these determinations, the circuitcourt may not place the parent "on equal footing with those seeking [guardianship]." See Wickham, 199 Ill. 2d at 320, 769 N.E.2d at 7. That is, the burden is on the petitioner to proveunfitness or good cause, not on the parent to prove his fitness or disprove good cause. See Troxel, 530 U.S. at 69, 147 L. Ed. 2d at 59, 120 S. Ct. at 2062.

Moreover, our holding will not "allow any third party to seek guardianship of a childwithout establishing, as a threshold requirement, their standing to do so" as Ronald argues. (Emphasis in original.) "The purpose of section 11-5(b) is to prevent the circuit court fromexercising its subject matter jurisdiction when the petitioner lacks standing." In re Estate ofKirsten Johnson, 284 Ill. App. 3d 1080, 1090, 673 N.E.2d 386, 392 (1996). In guardianshipproceedings, "whether [petitioners have] standing to petition for guardianship *** depends uponwhether [they have] rebutted the presumption that [Ronald] was willing and able to make andcarry out day-to-day child care decisions concerning [R.L.S.]." Johnson, 284 Ill. App. 3d at1091, 673 N.E.2d at 393.

In this case, Ronald filed a motion to dismiss for lack of jurisdiction pursuant to sections11-5(b) and 11-7. The circuit court denied that motion, finding that under the circumstances, itwas not deprived of jurisdiction. The court stated:

"I think it is going to come down to a question of whether or not the presumptionfavoring the natural parent survives after I have heard the evidence or whether ithas been rebutted by the evidence. Additionally, under the facts of this case, theparents here of this minor child lived separate and apart. And under Section 11-7,***, I would have the right to proceed because they were living apart and make adetermination based upon the evidence for good reason in awarding custody of thechild."

Ronald made no attempt to appeal the trial court's denial of his motion. Nonetheless, the courtnever determined whether petitioners had successfully rebutted the presumption; only, in effect,that Ronald's motion was premature. The court correctly stated the findings it must make beforeproceeding to a best interests determination. The cause is remanded for the court to determinewhether petitioners have rebutted the presumption that Ronald is willing and able to make andcarry out day-to-day child care decision concerning R.L.S. and, if so, to determine whether goodcause exists to award petitioners guardianship and whether it would be in her best interest to doso.

CONCLUSION

The order of the LaSalle County Circuit Court dismissing the petition for guardianship forlack of standing by the petitioner is reversed and the cause remanded for further proceedingsconsistent with this opinion.

HOLDRIDGE, P.J. and BARRY, J., concur.