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In Re Custody of Atherton





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. BUCKLEY, Judge, presiding.


Vivian and John Wittig (petitioners) filed a "petition for custody and other relief" against Patricia and Roger Atherton (respondents) seeking temporary custody, temporary visitation, and a declaratory judgment for permanent custody and adoption of Maria Atherton, a minor child. The trial court granted the respondents' motion to dismiss. Petitioners appeal.

"On motion to dismiss we accept as true all well-pleaded facts." (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 371 N.E.2d 634.) On September 17, 1976, Vivian Wittig (then Vivian Matheny) gave birth to a daughter, Maria. Vivian and her husband were subsequently divorced. Vivian retained custody of Maria. On October 7, 1977, Vivian consented to adoption of Maria by respondents. (Ill. Rev. Stat. 1977, ch. 40, par. 1512.) Judgment for adoption was entered on December 15, 1978. Vivian subsequently married petitioner John Wittig.

In January 1981, respondents contacted petitioners and informed them Roger Atherton was ill. Respondents stated they could no longer care for Maria. Pursuant to mutual consent, Maria visited with petitioners and went to live with them as of February 6, 1981. Petitioners stated respondents agreed to permit petitioners to adopt Maria.

In "late June, 1981," respondents informed petitioners they wished Maria returned to them. The parties subsequently entered into a "Memorandum of Agreement" on July 13, 1981. This document, a copy of which was attached to the petition, provided Maria would return to the home of respondents for a period of time and would then go to the home of petitioners for "visitation." The document provided the parties would resume "negotiating" the subject of Maria's custody. Maria went to live with respondents.

On August 6, 1981, respondents informed petitioners by letter respondents expressly repudiated the terms of the agreement and withdrew any consent allowing contact between petitioners and Maria.

In their petition, petitioners requested the trial court to place Maria in their temporary custody according to the provisions of the memorandum between the parties. Count II of the petition sought temporary visitation rights. Count III requested a declaratory judgment the respondents must comply with the memorandum.

In this court, petitioners contend the trial court improperly dismissed their petition. Petitioners contend the trial court should have given effect to the memorandum agreement executed between the parties.

Adoption procedures are purely statutory in Illinois. The right of adoption "was unknown at common law * * *." (Ekendahl v. Svolos (1944), 388 Ill. 412, 414, 58 N.E.2d 585.) It is undisputed petitioner Vivian Wittig formally placed her daughter Maria for adoption in October 1977. Also, she executed the requisite consent documents. (Ill. Rev. Stat. 1979, ch. 40, par. 1512.) Under the law of Illinois this consent to adoption is "irrevocable unless it shall have been obtained by fraud or duress * * *." Ill. Rev. Stat. 1979, ch. 40, par. 1513.

The record shows that on October 7, 1977, in adoption proceedings, the circuit court entered an order terminating the parental rights of the natural parents. On December 15, 1978, a formal judgment for adoption of Maria Atherton by the respondents was entered. Section 17 of the Adoption Act provides (Ill. Rev. Stat. 1979, ch. 40, par. 1521):

"After the entry either of an order terminating parental rights or the entry of an order of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, * * *."

• 1 Therefore, we are impelled first to reject petitioners' contention this case involves the child custody provisions of section 601 et seq. of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 601 et seq.). Custody and adoption proceedings are distinguishable in that "adoption severs the rights and interests of natural parents; it permanently terminates the relation between parent and child." In re Jones (1975), 34 Ill. App.3d 603, 607, 340 N.E.2d 269.

Notwithstanding the formal adoption of Maria by respondents, petitioners contend the memorandum agreement between the parties should be enforced. Petitioners stress the general maxims of equity and the constitutional provision of a "remedy in the laws for all injuries and wrongs" (Ill. Const. 1970, art. I, § 12) should permit the court to give effect to this document.

We find Willey v. Lawton (1956), 8 Ill. App.2d 344, 132 N.E.2d 34, instructive here. There, the natural mother and father of two minor children were divorced. The mother, who was custodial parent of the children, and her second husband (the plaintiffs) entered into an oral agreement whereby the natural father would pay them $3,000 in cash and a note for $2,000. The natural mother and her husband agreed, in turn, to adopt the children in order to relieve the natural father of future child support payments. The father defaulted on ...

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