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In Re Custody of Peterson

OPINION FILED APRIL 4, 1986.

IN RE CUSTODY OF LYNETTE PETERSON (RAYMOND JADRYCH ET AL., APPELLEES; JAMES PETERSON, APPELLANT).


Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

On July 2, 1984, the circuit court of Cook County dismissed a petition for modification of custody brought by Raymond and Patricia Jadrych, the maternal grandparents of Lynette Peterson. The court ordered that custody of Lynette be turned over to James Peterson, the respondent and the natural father of Lynette. The appellate court reversed (129 Ill. App.3d 887), and we allowed the respondent's petition for leave to appeal under Rule 315 (94 Ill.2d R. 315(a).) The only question for us is whether the circuit court erred in dismissing, for lack of standing, the Jadrychs' petition for modification of custody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)).

In September 1980, James and Felicia Peterson married, and a daughter, Lynette, was born to them in August 1981. Following her birth, James, Felicia and Lynette moved in with Felicia's parents, the Jadrychs. In May 1982, they left the Jadrychs and rented a house. Dissolution-of-marriage proceedings were begun by Felicia in December 1982, and a final decree was entered on February 23, 1983. The circuit court judged both parents fit to have custody of Lynette; it awarded custody to Felicia and provided reasonable visitation rights for James. Whether Lynette returned to live with the Jadrychs at the time the dissolution proceedings were commenced, or subsequent to the entering of the decree, is disputed. It is also disputed whether Felicia moved back to her parents' home immediately after the decree or at a later time.

Felicia and Lynette lived at the Jadrychs' home until Felicia's death in May 1984. During this period, James lived on the same block as the Jadrychs, and he exercised his visitation rights as to Lynette two days a week. The record shows that Felicia's fatal illness was long and disabling. Mrs. Jadrych testified that from the time the child came to her home, Felicia did not have sufficient strength to hold or bathe the child. After Felicia's funeral, James asked the Jadrychs to turn over Lynette to him and they refused. Later, both parties filed petitions for modification of custody, which were consolidated by the trial court.

"In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie." (In re Custody of Townsend (1981), 86 Ill.2d 502, 508. See also In re Estate of Whittington (1985), 107 Ill.2d 169, 177.) This superior right of the natural parent is recognized and embodied in our statutory law. Under the Juvenile Court Act (Ill. Rev. 1981, ch. 37, par. 701-1 et seq.), a child may not be placed in the custody of a non-parent unless the parents are found to be "unfit." Similarly, pursuant to provisions in the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq.), consent of the natural parents is necessary for adoption of a child unless the parents are judged "unfit." Under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.), the statute we consider here, nonparents must first satisfy a standing requirement in order to be considered for legal custody of a child. This standing requirement for nonparents appears in section 601, where it is stated:

"Sec. 601. Jurisdiction — Commencement of proceeding.

(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 4 of the Uniform Child Custody Jurisdiction Act as adopted by this State.

(b) A child custody proceeding is commenced in the court:

(1) by a parent, by filing a petition:

(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or

(ii) for custody of the child, in the county in which he is permanently resident or found; or

(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.

(c) Notice of a child custody proceeding shall be given to the child's parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause may permit intervention of other interested ...


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