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June 28, 1994



Scariano, DiVITO, Hartman

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

Plaintiff Leslie Ligon and defendant Darryl Williams, who are unmarried, are the parents of two children, Tiffany, born on October 18, 1987, and Bianca, born on March 28, 1989. (Bianca is not involved in this case.) In November and December of 1987, plaintiff filed two complaints through the State's Attorney pursuant to the Parentage Act (750 ILCS 45/1 et seq. (West 1993)), requesting the court to find a parent-child relationship between Tiffany and defendant and to order defendant to pay child support.

Summons issued, but three attempts to effect service of process upon defendant resulted in the sheriff's return of "not found." In May 1988, in response to the State's request, the trial court ordered the case taken off call and referred to the Parent Locator Service. On March 11, 1992, defendant was finally served with summons and a hearing was set for April 22, 1992. The State's Attorney sent notice of the hearing to plaintiff by mail, but she contends that she never received it.

At the hearing on April 22, 1992, only Cynthia Ashford, an assistant State's Attorney, and defendant, appearing pro se, were present. Defendant admitted paternity and Ashford informed the court that Tiffany was staying with defendant. The Judge then stated: "It looks, apparently from the papers, that you are a more fit individual, with the limited information I have[,] to take and assume custody of the child, which [sic ] is in your custody anyway." In response to questioning by the Judge, defendant stated that Tiffany had been staying with him for the past three months. The Judge then declared: "All right. Custody to the father." After the hearing, the court granted the State's Attorney's motion to dismiss the duplicate paternity action. It also entered its order finding that a parent-child relationship existed between defendant and Tiffany, reserving the issues of support and health insurance, and granting custody to defendant.

The parties agree that the "papers" the Judge was referring to were the contents of an April 16, 1992, three-page letter from Ms. Dawery of the Illinois Department of Public Aid (IDPA) to Karyn Aguirie of the Cook County State's Attorney office. The letter stated that plaintiff's grandmother had informed the IDPA that plaintiff leaves the children alone at night, does not pay rent, and does not buy food for the children, and that, as of February 19, 1992, Tiffany and Bianca were staying with defendant. According to the letter, plaintiff's grandmother recalled that her husband had found the children alone in their apartment with a strange man on one occasion. She also recalled another occasion when Bianca had a high fever and plaintiff could not be found, so defendant came and took her to the doctor. Plaintiff's grandmother expressed her suspicion that plaintiff had a drug problem. Dawery's letter also recounted that the Headstart director where Tiffany attended school stated that Tiffany had been brought to the doctor for a medical condition by school personnel, under their authority derived from a consent form signed by plaintiff, after plaintiff did not respond to several requests that she take Tiffany to a doctor. According to the letter, defendant stated to a department "income maintenance specialist" that the children were with him, that he had always supported them, and that plaintiff had told him that he could have permanent custody of the girls. Finally, the letter related unsuccessful attempts by IDPA personnel to discuss with plaintiff her reported neglect of the girls.

On October 26, 1992, plaintiff filed her "Petition to Return Custody" in which she stated that defendant never regularly paid child support, that she had signed a parentage complaint regarding Bianca, but defendant could not be found, and that both children were in her custody until April 1992 when defendant came with the police, showed her some "paper," and forced her to turn Tiffany over to him. She did not receive a copy of the "paper." She further stated that she had no notice of the April 22 hearing and that she was unaware of any court action on her case "since nothing had happened on the old cases in years." Plaintiff averred that after defendant took Tiffany, she made numerous telephone calls unsuccessfully trying to find out where defendant got his "court paper." She also stated that she tried to retain an attorney several times, but because she did not have the money for an "up front" fee, she was unable to retain counsel until August 1992 when she learned of the Legal Aid Bureau and obtained representation through that organization. Plaintiff stated that the records in the case showed that the State's Attorney failed to send her notice of the April 22 hearing. She contended that the court's order was "unfair, improper, and in violation of due process," and that it should be "declared a nullity and of no force and effect." Plaintiff also requested that custody of Tiffany be immediately returned to her. Finally, she asked the court to order the State's Attorney to appear and show proof, if any, of notice and "other relevant matters." Plaintiff certified her petition in accordance with section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 1992)).

Defendant then filed a section 2-615 (735 ILCS 5/2-615 (West 1992)) motion to strike and dismiss plaintiff's petition. Defendant noted omissions from the petition, including copies of summonses issued for him, the complaints plaintiff allegedly filed under Parentage Act, the exact date in April 1992 when defendant allegedly went to plaintiff's apartment and took Tiffany, the branch of the police who allegedly accompanied him on that date, dates when plaintiff allegedly made telephone calls in search of information regarding defendant's "court paper," and copies of documents from the records referred to in the petition. Defendant argued that he could not adequately respond to plaintiff's petition in the absence of the above-mentioned documents and information.

On May 28, 1993, the court held a hearing on plaintiff's petition and defendant's motion at which plaintiff argued that the issue of custody was not properly before the court on April 22, 1992. Upon questioning by the court, plaintiff testified that Tiffany went to defendant's house about three weeks before the hearing in April 1992, but before that, she was with her. She further testified that she was unaware of the April 1992 court date. Defendant interrupted plaintiff's testimony, requesting a ruling on his motion to dismiss before "getting into the evidentiary hearing." The Judge stated that he was trying to determine if disturbing his earlier judgment would be in Tiffany's best interests. Plaintiff's counsel responded that "the matter of best interest and custody is really not before the Court. * * * Not today. Not on my motion [sic ]." The trial Judge then granted defendant's motion, stating:

"I'm satisfied you [plaintiff] haven't presented the necessary documents necessary to overturn the counts [sic ]. I'd suggest the next time you get either a statement from the Assistant State's Attorney who presented the matter to me, who was present in court at that time, and whatever documents they have, since they were originally her lawyer. That's the ruling of the Court. They're represented--They made a representation to the Court they were still representing her at that time."

On September 14, 1993, the trial court granted plaintiff's motion to reconsider its May 28 order and, on November 22, 1993, the court set a hearing date for January 6, 1994, ordering Assistant State's Attorney Ashford and Ms. Dawery of the IDPA to appear at the hearing. The November 22 order also awarded visitation rights to plaintiff in the interim. The assistant State's Attorney moved to quash the subpoena addressed to her, stating that she did not represent plaintiff regarding custody at the April 22, 1992 hearing, that the Parentage Act prohibited such representation by the State's Attorney, and that she had no knowledge of the issue of notice to plaintiff regarding the custody matter. *fn1

Following the hearing on January 6, 1994, at which the court heard argument from counsel, the court denied plaintiff's petition to return custody. *fn2 Plaintiff now appeals.

Plaintiff argues that the trial court's ruling awarding custody of Tiffany to defendant is void because the issue of custody was not properly before the court, noting that the parentage petition was not directed at custody. She further argues that the trial Judge violated the Parentage Act by not affording her an opportunity to seek representation at the hearing held on Tiffany's custody. She finally argues that the proceedings on Tiffany's custody were conducted in ...

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