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09/22/87 In Re Custody of James J. O'rourke Et Al. (Dennis M.

September 22, 1987

IN RE CUSTODY OF JAMES J. O'ROURKE ET AL. (DENNIS M.


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

O'Rourke, Petitioner-Appellee, v.

Marsha A. O'Rourke, Respondent (Rita Gutkowski et al.,

Intervenors-Appellants))

514 N.E.2d 6, 160 Ill. App. 3d 584, 112 Ill. Dec. 610 1987.IL.1406

Appeal from the Circuit Court of Will County; the Hon. John Cirricione, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. STOUDER and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

This appeal is brought by Mary Beth Dickinson and William Keith Dickinson, maternal aunt and uncle of Sandra and Suzanne O'Rourke, and by Rita Gutkowski, another maternal aunt and guardian of the estate and person, from orders of the circuit court of Will County dismissing their petition to intervene in a custody modification proceeding and awarding custody to Dennis O'Rourke, the natural father.

The O'Rourke girls, both minors, and their brother James, now an adult and not involved in this appeal, were placed in the custody of their mother in 1981 when their parents were divorced. In 1985, following a lengthy illness, the mother, Marsha O'Rourke, died. During the mother's illness, she and the children had continued to live in the marital home in Lockport, Illinois. The Dickinsons, who lived in Wisconsin, came to Lockport on weekends for some 14 months to help care for Marsha and her children. After the mother's death, her relatives acceded to the father's request that the children be turned over to him.

The father filed a petition to modify custody. Subsequently, without objection from the father, a petition for leave to intervene filed by Gutkowski and the Dickinsons was allowed. In the petition, the Dickinsons sought custody of the two girls, and at their request, the court appointed the Isaac Ray Center of Chicago to evaluate all parties involved and ordered the Dickinsons to pay the cost. After the evaluation was completed, but apparently before it was filed with the court, the father filed a motion to dismiss the petition to intervene. Dismissal was allowed, and the court then awarded permanent custody to the father.

The petitioners' basic contention is that the trial court erred in ruling that they lack standing to intervene in opposition to the natural father, who has custody of the children. Petitioners first argue that the father waived his right to object by not objecting at the time the petition was filed and before the expense of the evaluation was incurred. This contention is based upon the premise that the motion to dismiss was filed pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Although lack of standing has been held to be an affirmative defense which may be the basis for dismissal under section 2-619(a)(9) (Hermes v. Wm. F. Meyer Co. (1978), 65 Ill. App. 3d 745, 382 N.E.2d 451), we do not regard the motion to dismiss of the father to be the equivalent of a section 2-619 motion by a defendant.

Here petitioners have filed a petition to intervene in the custody proceeding commenced by the father as plaintiff. Thus, petitioners claim standing under section 601(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(c)), while the trial court ruled that they lack standing under section 601(b)(2) as interpreted by ...


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