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In Re Custody of Peterson

OPINION FILED DECEMBER 20, 1984.

IN RE CUSTODY OF LYNNETTE PETERSON (RAYMOND JADRYCH ET AL., PETITIONERS-APPELLANTS,

v.

JAMES PETERSON, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Allen Rosin, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This appeal arose from a dismissal by the trial court of a petition for modification of judgment brought by petitioners, Raymond and Patricia Jadrych, who are the maternal grandparents of the minor child, Lynnette Peterson. The grandparents sought to obtain custody of the minor child, who is the subject of this dispute. The trial court granted the natural father's motion to dismiss the grandparents' petition. On appeal, we are asked to consider (1) whether the trial court improperly denied petitioner's motion for a change of venue, and (2) whether the grandparents had standing to bring a petition for modification of custody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)).

We affirm in part and reverse in part.

Petitioners' daughter, Felicia Peterson, the child's mother, was divorced from James Peterson, the child's father, on February 23, 1983. Lynnette was 1 1/2 years of age at the time of the divorce. Felicia and James were married on September 6, 1980. Lynnette was born on August 24, 1981. Felicia, James, and Lynnette lived in the home of Felicia's parents, the petitioners, from the time of their marriage until May 1982. There is some dispute as to whether Lynnette returned to live with the petitioners in November 1982, which was prior to the divorce of her parents, or in early 1983 after the divorce.

The divorce judgment entered in February 1983 gave Felicia custody of Lynnette and reasonable visitation rights to James. The court found that both parents were fit and proper parties to have custody of the child. After the divorce, Felicia and Lynnette resided with petitioners in their (petitioners') home until Felicia's death on May 20, 1984. Upon Felicia's death, this litigation commenced.

On June 4, 1984, James filed a petition for modification of the divorce judgment in the circuit court of Cook County. James' petition sought to modify the divorce judgment to grant him custody of Lynnette in light of Felicia's death. The petition alleged that Lynnette was in the physical custody of petitioners and that petitioners had refused to hand over Lynnette into James' custody.

On June 7, 1984, the grandparents filed a petition in the same court seeking custody of Lynnette, pursuant to section 601(b)(2) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)). Their petition alleged, among other things, that James was not a fit and proper person to have custody of Lynnette; that there were bruises on Lynnette's body after visiting James; and that James' life-style was detrimental to Lynnette's well-being. Both petitions were consolidated before the trial court on June 8, 1984. On June 26, 1984, James filed a motion to dismiss the grandparents' petition, alleging lack of standing under section 601(b)(2) of the IMDMA. On that date, the attorneys for the parties appeared before the judge and, in the presence of a court reporter, gave the judge a synopsis of what the case involved. The judge was told that the custodial parent was deceased and that the grandparents with whom the child resided sought to have legal custody granted to them. The natural father, James, also sought custody and had filed a motion to dismiss the grandparents' petition, asserting lack of standing. The judge allowed the grandparents seven days to respond to the motion to dismiss and set a date for a hearing of the motion. A discussion took place between the judge and the attorneys regarding the pending petitions and the upcoming motion to dismiss. The following are excerpts from that discussion:

"MR. MORGAN [counsel for the grandparents]: We are getting into the merits of the case.

MR. BURT [counsel for James Peterson]: On what legal basis are the grandparents holding the child?

THE COURT: I don't know that. Apparently from what I hear now I don't take this to be a legal basis. * * * [T]he only reason I see is that they are holding the child after their daughter died, is that correct?

MR. MORGAN: The daughter had been sick for several years. She was living with them.

THE COURT: She had custody?

MR. MORGAN: Yes.

THE COURT: The question is does that give them possession. I would say this without giving you any indication that in and of ...


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