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10/02/89 In Re Marriage of John Carey

October 2, 1989

IN RE MARRIAGE OF JOHN CAREY, PETITIONER, AND CAROL CAREY,


Before a non-parent may proceed under the best interests standard of the Dissolution Act (see Ill. Rev. Stat. 1987, ch. 40, par. 602), the nonparent seeking custody must first show that he or she meets the standing requirements of section 601(b)(2) of the Dissolution Act. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2); In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 524 N.E.2d 728 (nonparent seeking to intervene in proceedings pursuant to section 601(c) of the Dissolution Act must meet section 601(b)(2) standing requirement where intervenor nonparent seeks custody); see In re Person & Estate of Newsome (1988), 173 Ill. App. 3d 376, 527 N.E.2d 524 (applied section 601(b)(2) standing requirement in probate proceedings to maternal grandparents who sought custody of child who had lived with and was in physical possession of man who lived with mother at time of mother's death and claimed to be father).) The superior right of a natural parent to legal custody of his or her child is recognized and protected in the Dissolution Act by requiring a non-parent seeking custody to first meet the standing requirements of section 601(b)(2) of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)), before being considered for custody under the best interests standard without the necessity of first establishing the unfitness of the parent. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 53, 491 N.E.2d 1150, 1152; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 175, 524 N.E.2d 728, 731; In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 541, 440 N.E.2d 1036, 1040.) The superior right of a natural parent to custody of his or her child is not absolute but only one of several factors looked to in determining best interests of the child. In re Custody of Peterson (1986), 112 Ill. 2d 48, 51-52, 491 N.E.2d 1150, 1151.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Respondent-Appellant (Mary Carey, Intervenor-Appellee)

544 N.E.2d 1293, 188 Ill. App. 3d 1040, 136 Ill. Dec. 518 1989.IL.1589

Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso and the Hon. C. Andrew Hayton, Judges, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. WOODWARD, J., concurs. JUSTICE DUNN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Respondent, Carol Carey, the natural mother of the minor child, Brendan Carey, and the former spouse of Brendan's natural father, the deceased John Carey, appeals from the judgment of the circuit court of Du Page County finding in a modification of custody proceeding pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) that it is in the best interests of Brendan to place permanent legal custody of Brendan with John Carey's second wife and widow, Brendan's stepmother, the intervenor, Mary Carey.

On August 1, 1964, John Carey (John) and Carol Carey (Carol) were married. Their marriage produced four children, Sean, Kathleen, Maureen and Brendan. In January 1980, Carol moved out of the marital residence in Wheaton, Illinois, and into an apartment, also located in Wheaton. The children lived with John in the marital residence. On September 14, 1981, the circuit court of Du Page County entered a judgment of dissolution of marriage which incorporated a settlement agreement entered between John and Carol. At the time of dissolution, Sean was 16 years old, Kathleen was 14, Maureen was 10 and Brendan was 6. The settlement agreement incorporated in the judgment of dissolution of marriage gave the care, custody and control of the children to John, with Carol having rights to reasonable visitation.

In the summer of 1980, John began dating Mary Carey (Mary). Mary spent considerable time with the children of John and Carol while dating John. In December 1981, Mary moved into John and the children's home, and John and Mary were married on January 15, 1982.

In 1984, John, who like Mary, worked for the Internal Revenue Service, was transferred to Washington, D.C. John petitioned the court to remove the children from Illinois to the Washington, D.C., area. On October 30, 1984, the circuit court of Du Page County entered an order by agreement of John and Carol which provided in relevant part that John would retain "permanent custody" of the minor Brendan, age nine, and be allowed to move Brendan with him to the Washington, D.C., area. The agreed order also transferred the permanent custody of the minor Maureen, age 14, to Carol. The order set a liberal visitation schedule for John and Carol to see Maureen and Brendan. The two other children, Sean and Kathleen, had attained emancipation and were no longer the subject of custody arrangements between John and Carol.

John, his wife Mary, and Brendan moved to a suburb of Washington, D.C., located in Fairfax County, Virginia. A mother-son relationship developed between Brendan and his stepmother, Mary. Carol exercised her rights to visitation with her son Brendan, including 18 overnight visits in 1984. The situation remained this way until 1987.

In the early hours of Saturday, October 24, 1987, John Carey died. John did not leave a last will and testament. That afternoon Mary and Carol talked by phone. Carol, a teacher in the Chicago public school system, expressed her desire to come to Virginia that evening to get Brendan. Mary did not intend to allow Brendan to go with Carol. Carol did not go to Virginia that Saturday.

Within a few days of John's death, Mary commenced proceedings in a circuit court for the county of Fairfax, Virginia, to obtain an order appointing Mary and Brendan's paternal grandmother, Ann Carey, guardians of Brendan. Mary's "Petition for Appointment of a Guardian" stated that Brendan, age 12, who had an estate of $500, had resided with his father, John, and his stepmother nearly six years, and in Fairfax County, Virginia, since 1984 and that John had died. The petition further stated that Carol Carey, a resident of Illinois, by an agreed order entered in the circuit court of Du Page County, Illinois, relinquished full legal custody of Brendan to John. The petition further stated that Brendan, the heir of his father's estate, wished to continue to reside with Mary in Virginia. The notarized petition was signed by Mary and Ann Carey. On November 13, 1987, the circuit court of Fairfax County, Virginia, finding Brendan without a guardian and in need of a guardian, entered an order appointing Mary and Ann Carey temporary guardians of Brendan and his estate. Carol was not given notice of these proceedings.

On November 8, 1987, in the circuit court of Du Page County, Carol petitioned for an emergency modification of custody pursuant to section 610 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 610). Mary was given notice of these proceedings and filed responsive pleadings. After the filing by Mary and Carol of various pleadings on January 6, 1988, Mary's petition forum non conveniens was denied, the circuit court of Du Page County finding it had jurisdiction to make a custody determination under the Dissolution Act and the Uniform Child Custody Jurisdiction Act (the Child Custody Act) incorporated into the Dissolution Act. (See Ill. Rev. Stat. 1987, ch. 40, pars. 601(a), 2104.) The trial court gave leave to Mary to file her petition to intervene and other responsive pleadings. The January 6, 1988, order also provided for Mary, as ...


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