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05/13/87 Maria Montgomery, v. Ola Roudez

May 13, 1987

MARIA MONTGOMERY, PLAINTIFF-APPELLANT

v.

OLA ROUDEZ, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

509 N.E.2d 499, 156 Ill. App. 3d 262, 108 Ill. Dec. 803 1987.IL.619

Appeal from the Circuit Court of Cook County; the Hon. Howard Kaufman, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff, Maria Montgomery, appeals from a decision of the circuit court of Cook County awarding custody of her son, Anthony Montgomery a/k/a Rodney (hereinafter Anthony), to non-parent defendant, Ola Roudez, pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq). On appeal, plaintiff argues that (1) the trial court applied an incorrect standard in determining that permanent custody of Anthony should be granted to defendant, (2) the trial court's award of custody was against the manifest weight of the evidence, and (3) she was denied due process and equal protection of the law. We affirm.

The record reflects that on August 11, 1982, at the age of 14, plaintiff gave birth to Anthony. At that time, plaintiff was a ward of the Illinois Department of Children and Family Services. Thereafter, plaintiff relinquished the care and custody of Anthony to defendant, plaintiff's great-aunt.

After being discharged from the hospital, plaintiff initially lived with her father and his girlfriend and then resided in a series of foster homes. In October of 1982, plaintiff contacted police officers Gawelz and Brownfield of the Chicago police department in an apparent attempt to regain custody of Anthony. Officer Gawelz testified that plaintiff indicated she wanted her baby back so that she could go on public aid and have her own apartment. Officer Brownfield stated that plaintiff told him she needed to regain custody of Anthony because she was not eligible to receive public aid without him.

Thereafter, on April 27, 1983, plaintiff filed a habeas corpus proceeding seeking physical custody of Anthony. Defendant subsequently filed a counterpetition for custody of Anthony pursuant to section 601(b)(2) of the IMDMA (Ill. Rev. Stat. 1983, ch. 40, par. 601(b)(2)). The court consolidated the actions, and plaintiff filed an answer to the counterpetition for custody. A guardian ad litem was then appointed for Anthony.

Following a lengthy trial involving the testimony of the parties, several social workers, a psychiatrist, and the two Chicago police officers, the trial court found plaintiff unfit to be awarded custody of Anthony. The trial court further determined that it was in Anthony's best interest to remain in the custody of defendant and her family. Defendant was then awarded permanent custody of Anthony. This appeal followed.

Plaintiff initially questions defendant's standing to maintain an action for custody of Anthony. While plaintiff has failed to articulate an argument on this issue, we believe it should be discussed before the merits of this appeal are addressed. Defendant brought her counterpetition for custody of Anthony pursuant to section 601 of the IMDMA. Section 601 requires that a non-parent must first satisfy a

Sec. 601 Jurisdiction -- Commencement of Proceeding.

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

(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. ...


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