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12/08/89 In Re Custody of Tony Butler (Joan Butler Et Al.

December 8, 1989

IN RE CUSTODY OF TONY BUTLER (JOAN BUTLER ET AL.,


Before this court can determine whether the "good of Tony" should be the determinative factor, we must first conclude that the grandparents had custody of Tony within the meaning of the cited provision of the Illinois Marriage Act.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

Plaintiffs-Appellants, v.

Rodney Butler, Defendant-Appellee)

548 N.E.2d 582, 192 Ill. App. 3d 135, 139 Ill. Dec. 197 1989.IL.1918

Appeal from the Circuit Court of Cook County; the Hon. John Beatty, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Joan and Bernard Butler (Joan and Bernard) appeal from an order of the trial court in a custody proceeding involving their grandson, Tony Butler (Tony). Defendant in the case is Rodney Butler (Rodney), the father of Tony and son of Joan and Bernard. The facts underlying the case are as follows.

Joan and Bernard filed a petition for custody of their grandson, Tony. Thereafter, they filed a petition for an order of protection, charging Rodney with the physical abuse of Tony. On September 7, 1988, the trial court granted a motion filed by Rodney to dismiss the cause based on an issue of standing. The trial court also rejected Joan and Bernard's claim that a guardian ad litem ought to be appointed for Tony because of the standing and physical abuse issues. Joan and Bernard filed a timely appeal from the order.

On appeal Joan and Bernard contend that the trial court erred and abused its discretion in: (1) its determination that Joan and Bernard did not have standing to bring a child custody action concerning their grandson; and (2) that the court erred in refusing to appoint a guardian ad litem to represent the grandson.

The provisions of our Marriage and Dissolution of Marriage Act (Illinois Marriage Act) expressly permit a person, other than a parent, to file a petition for custody if a child is "not in the physical custody of one of his parents." (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2).) In the interpretation of this section, our supreme court has held that a non-parent must show that the child is "not in the physical custody of one of his parents." When this requirement has been met, the nonparents will be considered for legal custody of the child under "a best interest of the child" standard. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

Recognizing this now settled Illinois law, the grandparents, Joan and Bernard, argue that they had physical custody of their grandson Tony, and that the trial court should have applied the best interest of the child standard to the issue of custody. We affirm the trial Judge for the following reasons.

The facts disclose that Tony was born on September 1, 1976, as a result of the marriage of Rodney and Susan Butler. Rodney was awarded the sole care, custody, control and education of Tony on January 19, 1981. Tony lived with his father at the home of his father's parents, Joan and Bernard, until October 1987. On that date, Tony and Rodney moved into their own home in Palatine, Illinois. The reason Rodney moved from his parents' home, according to Rodney, was his concern about sanitary conditions and the alleged refusal of his parents to allow Tony to attend school. The grandparents, on the other hand, base their right to bring the custody proceeding on the years Tony lived with them and a spanking of Tony by his father which allegedly caused ...


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