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06/30/87 In Re Custody of Nicole Mccarthy Et Al. (Raymond C. Wenk Et

June 30, 1987

IN RE CUSTODY OF NICOLE MCCARTHY ET AL. (RAYMOND C. WENK ET


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

al., Petitioners-Appellants, v.

Clayton J. McCarthy, Respondent-Appellee)

510 N.E.2d 555, 157 Ill. App. 3d 377, 109 Ill. Dec. 687 1987.IL.945

Appeal from the Circuit Court of McHenry County; the Hon. Haskell Pitluck, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Petitioners Raymond C. Wenk, Patricia Wenk, Dianna Miller, and Ronald Miller appeal from a decision by the trial court: (1) granting respondent's motion to dismiss their motion for temporary permanent custody of minors, Nicole and Clayton McCarthy, Jr., and (2) denying petitioners leave to intervene under section 601(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 601(c)). Petitioners Raymond Wenk and Patricia Wenk are the maternal grandparents of the minor children. Petitioner Dianna Miller is the children's maternal aunt and Ronald Miller is her husband. Respondent Clayton McCarthy is the natural father of the minor children.

On May 24, 1984, the children's mother, Yvonne M. McCarthy, filed a petition for marital relief, seeking legal separation or dissolution of marriage against Clayton J. McCarthy. A judgment for dissolution of the marriage was entered on February 13, 1985. The settlement agreement incorporated in the judgment provided for Yvonne to have custody of the minor children and gave respondent visitation rights of one day per week. Respondent was ordered to pay $85 per week in child support.

On July 12, 1985, Yvonne McCarthy was killed in an automobile accident. On July 15, 1985, respondent filed an emergency affidavit and petition seeking temporary and permanent custody of the minor children and permission to remove the children to the State of Wisconsin. On this same date, the court entered an order granting custody of the minor children to the petitioner Dianna Miller until July 24, 1985.

On July 22, 1985, petitioners Dianna L. Miller and Ronald N. Miller and/or in the alternative Raymond Wenk and Patricia Wenk filed their petition for custody of the minor children pursuant to section 601(b)(2) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)). On July 24, 1985, respondent filed his answer to the petitioners' petition for custody and therein moved to strike on the grounds that section 601(b)(2) did not provide for alternative pleadings, but he did not raise the question of petitioner's standing under section 601(b)(2). The court denied the respondent's motion to strike the alternative relief sought in the petition of the petitioners for custody. Then, on July 29, 1985, respondent filed a motion for temporary custody pending temporary hearing. The court entered an order on August 2, 1985, which denied respondent's motion for temporary custody pending the hearing and provided that the minor children should remain in the temporary custody of Dianna Miller. The children remained in her custody throughout the permanent custody hearings. The respondent married Candy Kamen on July 31, 1985.

From and including July 15, 1985, through June 11, 1986, the court conducted a continuing hearing regarding the permanent custody of the minor children. The court heard the testimony of over 30 witnesses. Approximately 3,000 pages of transcript were taken. Petitioners put on 26 witnesses, and respondent put on 10 witnesses.

The petitioners ended their case in chief on October 29, 1985. Respondent moved for a finding in his favor. The court denied this motion on November 12, 1985. Respondent proceeded with his case in chief, which he closed on May 23, 1986. At that time, both petitioners and respondent moved for findings in their favor. The court denied these motions, and petitioners put on several rebuttal witnesses. On May 1, 1986, respondent filed a motion to dismiss, alleging for the first time that the petitioners had no standing to bring a child custody action pursuant to section 601(b)(2) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)). On August 29, 1986, the court entered an order which granted the respondent's motion to dismiss and ordered the minor children transferred to him on September 1, 1986. The court retained jurisdiction of the cause, permitting the respondent to temporarily remove the minor children to Wisconsin for purposes of residence and enrollment in school. This appeal followed. It should be noted that on July 15, 1985, the trial court appointed a guardian ad litem to represent the children in the custody proceeding. The guardian ad litem has chosen not to take part in the appeal. This court draws no inferences or assumptions from the guardian's lack of participation.

On appeal, the petitioners raise three issues: (1) petitioners have standing under section 601(b)(2) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)) to initiate an action for child custody; (2) respondent waived his right to object to petitioners' standing by failing to make a timely motion to dismiss; and (3) the trial court abused its discretion by failing to allow petitioners to ...


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