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05/04/88 In Re Marriage of Michael A. Russell

May 4, 1988


Before proceeding to the relevant Illinois law it is noteworthy that the question presented has yielded two primary schools of thought. (Annot., 67 A.L.R.2d 803, 810-16 (1959).) The majority of jurisdictions have concluded the best interests of the child is the controlling factor in appointing a guardian, and the testamentary nomination is not binding where the court determines in its sound discretion that another party is better suited to act as guardian. (67 A.L.R.2d 803, 810 (1959).) A minority of jurisdictions have determined the testamentary nominee should be appointed as guardian if qualified, and it does not appear the appointment will be detrimental to the child. 67 A.L.R.2d 803, 813 (1959).


SANDRA V. RUSSELL, Respondent (William Shenberger et

al., Intervenors-Appellees; Donald G. Russell II et al., Intervenors-Appellants)

523 N.E.2d 193, 169 Ill. App. 3d 97, 119 Ill. Dec. 725 1988.IL.677

Appeal from the Circuit Court of Winnebago County; the Hon. Robert J. French, Judge, presiding.


JUSTICE DUNN delivered the opinion of the court. WOODWARD and INGLIS, JJ., concur.


Intervenors, Donald G. Russell II and S. Ann Russell (the Russells), appeal from a circuit court order awarding guardianship of the person and estate of their nephew, Steven Russell (Steven), to Steven's maternal grandparents, intervenors William Shenberger and Jean Shenberger (the Shenbergers). The Russells argue the court abused its discretion when it awarded guardianship of Steven to the Shenbergers. The Russells also argue the court erred in considering a portion of a report submitted by the guardian ad litem. We affirm.

On December 16, 1983, the marriage of Michael A. Russell (Michael) and Sandra V. Russell (Sandra) was dissolved by court order. Custody of the parties' minor child, Steven, was awarded to Michael. On September 9, 1986, Michael died, leaving a valid will. Section 9 of the will named Michael's brother, Donald G. Russell II (Donald), as guardian of the person and estate of his minor children.

On September 15, 1986, Sandra filed a petition for order of protection seeking custody of Steven. On the same day, the Russells filed a petition for custody and injunction requesting temporary and permanent custody of Steven on grounds that Donald was appointed guardian in Michael's will and Sandra was unfit. The court entered an order granting temporary custody to the Russells. On September 17, the Shenbergers motioned for leave to intervene and petitioned the court to grant them custody of Steven. The court granted the Shenbergers' request to intervene and allowed them to file their petition in intervention. The Russells withdrew their petition for custody and injunction and were granted leave to file an amended petition for custody. The court awarded temporary custody to the Shenbergers.

On October 14, Michael's will was admitted to probate. On December 16, Sandra withdrew her petition for custody, stating that she did not wish to contest or further participate in the custody proceedings. Included in this pleading was Sandra's statement that it was in the child's best interests that custody be granted to her parents, the Shenbergers. On April 2, 1987, the Russells' amended petition for leave to intervene was granted. On July 10, 1987, the cause proceeded to a hearing on the question of the guardianship of the minor. At the outset, the parties agreed to consolidate the dissolution case and the probate case because of the common question of guardianship.

At the hearing, Jean Shenberger, Steven's 50-year-old maternal grandmother, recounted that in October 1981, while Michael and Sandra were in Tampa, Florida, Michael was involved in a serious motorcycle accident that resulted in extensive hospitalization and permanent paralysis from the waist down. In March 1982, Michael was transferred to a hospital in Milwaukee. On March 8, Steven was born. Shortly thereafter, Michael was released from the hospital and went to live with Sandra and Steven at the Shenbergers' home in Argyle, Illinois. In August, the Shenbergers moved to a three-bedroom house on a lake in a rural subdivision four miles west of Montello, Wisconsin. Michael, Sandra and Steven moved with the Shenbergers to Montello and remained there until February 1983, when they moved to Rockford.

Some months later, Michael petitioned for dissolution of the marriage. When the marriage was dissolved, Sandra left Rockford. Michael remained in Rockford with Steven. Mrs. Shenberger said that despite the divorce she and her husband remained in contact with Michael and Steven and visited frequently until the time of Michael's death in September 1986. Mrs. Shenberger agreed it was important for Steven to maintain contact with his father's ...

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