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07/26/88 In Re Person and Estate of Benny A. Newsome Et Al.

July 26, 1988

IN RE PERSON AND ESTATE OF BENNY A. NEWSOME ET AL., MINORS


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

(John Lewis et al., Petitioners-Appellants, v.

Benny Newsome, Respondent-Appellee (Danny Ford,

Respondent)). -- In re CUSTODY OF BENNY NEWSOME, JR.

(Benny Newsome, Petitioner-Appellee, v. John

Lewis et al., Respondents-Appellants)

527 N.E.2d 524, 173 Ill. App. 3d 376, 123 Ill. Dec. 61 1988.IL.1147

Appeal from the Circuit Court of Vermilion County; the Hon. Joseph C. Moore, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Patricia Morris died suddenly on June 26, 1987, leaving her two children, Benny A. Newsome (Benny, Jr.) and Tamika Caprise Smith. She, evidently, was still legally married to Joe Morris. Petitioners John and Annette Lewis, parents of Patricia, filed a petition under section 11-5 of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 11-5), asking that they be appointed guardians of the persons of Benny, Jr., and Tamika. On July 7, 1987, respondent Benny Newsome filed a petition based on section 601 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1985, ch. 40, par. 601), alleging he was the father of Benny, Jr., and asking for custody of the boy. The circuit court of Vermilion County consolidated the two petitions for hearing. Petitioners subsequently filed a petition based on section 601 of the Marriage Act. They, too, asked for permanent custody of Benny, Jr.

After taking evidence, the trial court entered an order on January 8, 1988, which found respondent to be the natural father of Benny, Jr. In awarding custody to respondent, the court found that petitioners lacked standing to bring a petition under either the Probate Act or the Marriage Act, citing In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150, as binding authority. Petitioners had physical custody at the time of the hearing, and the trial court granted a stay of judgment pending appeal. Petitioners appeal.

The trial court's ruling is based upon the theory that petitioners lacked standing. There is no finding made as to the best interest of the child. Further, petitioners and respondent dispute only the custodial right to Benny, Jr. Tamika is not a part of this appeal.

A portion of the Marriage Act is devoted to determining child custody. Section 601 of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 601) provides that a parent or a person other than a parent may file a petition for custody. Section 602 of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602) supplies the standard for determining custody, which is the best interest of the child. In order for a person other than a parent to have standing to file a child custody petition, the child must not be "in the physical custody of one of his ...


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