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05/01/95 MARRIAGE OLGA THOMPSON PETITIONER AND

May 1, 1995

IN RE MARRIAGE OF OLGA THOMPSON, PETITIONER, AND MICHAEL THOMPSON, RESPONDENT-APPELLEE (COREY THOMPSON, PETITIONER-APPELLANT).


Appeal from the Circuit Court of Du Page County. No. 91-D-1367. Honorable George J. Bakalis, Judge, Presiding.

The Honorable Justice Doyle delivered the opinion of the court: Geiger and Thomas, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

This case raises a novel issue: whether a petition for a change of child custody pursuant to the relevant provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601 et seq. (West 1992)) may be brought by the minor child himself. The circuit court dismissed the petition of Corey Thompson (petitioner), the minor child of respondent, Michael Thompson, to change custody from respondent to petitioner's aunt and uncle, Gregor and Anna Maksymiw. Petitioner resided with the Maksymiws after the death of his mother, Olga Thompson, who originally had custody upon the dissolution of her marriage to respondent. After the court awarded respondent custody of petitioner, petitioner sought to transfer custody to the Maksymiws.

On appeal, petitioner argues that the Act gives him standing to petition for a change of custody based on his best interests. He argues that the denial of standing violated his constitutional rights to due process and equal protection. We find no merit in petitioner's arguments, and we affirm the dismissal of his motion.

On March 30, 1992, the circuit court entered a judgment dissolving the marriage of Olga Thompson and respondent. Olga Thompson was awarded the sole custody of the two minor children, Christine (born in 1975) and petitioner (born in 1978).

On November 23, 1993, respondent filed a petition for custody under the Act. He alleged that there had been a substantial change in circumstances in that Olga Thompson died on or about November 12, 1993. Petitioner remained in his deceased mother's home with Christine (who was now emancipated), but he was not receiving the necessary parental supervision. Respondent was a fit and proper person to have custody of petitioner.

On November 23, 1993, the court granted the petition and awarded respondent sole custody of petitioner. The court's written order recited that, on that day, respondent appeared in court in person and by his attorney; petitioner, Christine, and the Maksymiws each appeared in person. The court found that there was a substantial change in circumstances (Olga Thompson's death) and that respondent was a fit and proper person to have custody of petitioner.

On December 9, 1993, petitioner filed his petition to change custody. He was now represented by counsel. The petition stated that, during the time that Olga Thompson had custody of petitioner, respondent exercised his visitation rights only infrequently and sporadically. Petitioner was currently residing with Anna Maksymiw, Olga Thompson's sister, and Anna's husband Gregor. He did not desire to live with respondent as the father-son relationship was "strenuous at best." Petitioner believed it was in his best interests for custody to be awarded to the Maksymiws.

The petition stated that petitioner had received only one day's notice of respondent's intention to bring his action for custody. As a result, petitioner had been unable to obtain counsel for the November 23, 1993, hearing.

On January 11, 1994, petitioner filed a petition to vacate the November 23, 1993, order granting respondent custody. He stated that he was still residing with the Maksymiws, did not desire to live with respondent, and had not lived with respondent since the dissolution of the marriage. Petitioner asked the court to set respondent's custody petition for a new hearing and grant petitioner leave to file his petition for change of custody pursuant to section 601(b) of the Act (750 ILCS 5/601(b) (West 1992)).

Respondent moved to dismiss this petition. He alleged that, because the petition was filed more than 30 days after the November 23, 1993, order, it was in substance an action under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1992)). Respondent argued that under section 2-1401 the petition was legally insufficient because (1) it pleaded no facts to overcome the presumption that respondent as natural parent had a superior right to the custody of his minor child; and (2) petitioner lacked standing to petition for a change of custody pursuant to section 601 of the Act.

The trial court agreed with both arguments and granted the motion to dismiss. Petitioner's motion to reconsider was denied, ...


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