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11/22/96 PARENTAGE UNBORN CHILD BRUMFIELD v. AMY R.

November 22, 1996

IN RE: THE PARENTAGE OF UNBORN CHILD BRUMFIELD, BRIAN DEAN BRUMFIELD, PETITIONER-APPELLEE,
v.
AMY R. YARD, RESPONDENT, AND TERRY DEAN GINGER AND KERI JEAN GINGER, THIRD PARTY RESPONDENTS-APPELLANTS.



Appeal from Circuit Court of Logan county. No. 93F23. Honorable Gerald G. Dehner, Judge Presiding.

Released for Publication November 22, 1996. As Corrected January 3, 1997. As Corrected January 30, 1997.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, P.j. - Special Concurrence, Honorable James A. Knecht, J. - Dissent. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

This is another in a long line of cases involving disputes between one or both natural parents of a child and nonparents as to the custody of the child. This suit was brought under section 7 of the Parentage Act of 1984 (Parentage Act) (750 ILCS 45/7 (West 1992)). The dispute is part of a controversy which involves the complicated relationship between that legislation and the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 1992)), the Adoption Act (750 ILCS 50/0.01 et seq. (West 1992)), the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 1992)), the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/ 1-1 et seq. (West 1992)), and the proceedings for a writ of habeas corpus (735 ILCS 5/10-101 et seq. (West 1992)). In affirming this case, we believe that we and the circuit court have followed precedent.

On March 3, 1993, petitioner Brian Dean Brumfield filed this suit in the circuit court of Logan County against respondent Amy Yard seeking custody of an unborn child with which she was pregnant and of which he claimed he was the father. The petition was filed pursuant to section 7 of the Parentage Act and petitioner requested the establishment of a parent-child relationship with the child and an award of custody to him. He asked that the question of support be reserved. The child F.Y. was born on April 25, 1993, and on November 12, 1993, respondent executed an irrevocable consent for the adoption of F.Y.

Also on November 12, 1993, Terry Dean Ginger and Keri Jean Ginger, husband and wife, filed a petition in the circuit court of Christian County seeking to adopt F.Y. After petitioner was served with process in that proceeding, he filed a petition in this Parentage Act proceeding on November 23, 1993, requesting paternity blood testing (750 ILCS 45/11 (West 1992)). That request was granted, the necessary individuals submitted to blood tests, and when respondent failed to appear for a February 2, 1994, court date in the parentage case, the court entered an order defaulting her and declaring petitioner the father of F.Y. but reserving the questions of custody and child support. Although the Gingers were not then parties to the parentage case and had not yet sought intervention, for the purpose of the matters involved in this appeal, they do not dispute petitioner's paternity.

On February 22, 1994, the Gingers filed a petition to intervene in the parentage proceeding seeking to obtain custody of F.Y. and other relief. After an evidentiary hearing, the court allowed intervention on November 30, 1994, determining the Gingers had standing to intervene. Petitioner sought leave of this court to appeal that interlocutory order pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). We denied the appeal. In re Parentage of Brumfield, [slip op.] No. 4-94-1076 (February 7, 1995) (leave to appeal denied). On April 6, 1995, after a hearing on petitioner's motion, the court reconsidered its ruling allowing intervention and denied intervention, on the basis that the Gingers lacked standing to seek custody of F.Y. The court then made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The cited reason for the court's change was the recent highly publicized decision of the Supreme Court of Illinois in In re Petition of Kirchner, 164 Ill. 2d 468, 649 N.E.2d 324, 208 Ill. Dec. 268 (1995). The Gingers have appealed. We affirm.

Much of the evidence at the hearings on intervention was undisputed. Petitioner and respondent had been engaged and lived together for a period but separated in August 1992. Shortly thereafter, respondent learned she was pregnant and both she and petitioner believed petitioner was the father. After F.Y. was born, petitioner visited respondent and F.Y. in the hospital. For approximately the next seven months respondent and F.Y. lived with respondent's grandmother or in an apartment in Christian County. During this period, petitioner and respondent did not resume their romantic relationship but petitioner visited the baby almost every weekend and once F.Y. was about two months old, petitioner began taking her for overnight visits.

A dispute developed between petitioner and respondent as to whether petitioner kept the child too long on one visit and respondent made greater restrictions on petitioner's subsequent visits. However, petitioner continued to attempt to visit F.Y. every weekend and was permitted to do so approximately every other weekend until mid- or late-October 1993, when petitioner attempted a visit but was told by respondent that she had placed F.Y. with some relatives whose names she did not disclose. On November 3, 1993, respondent met with personnel of an office of the Illinois Department of Children and Family Services (DCFS), who had contacted Keri Ginger to be at the meeting. After that meeting, respondent brought F.Y. to Keri Ginger and left F.Y. with Keri telling her she and her husband, Dean, could adopt F.Y. The Gingers' filing of the adoption complaint in Christian County and the petition to intervene here followed.

Central to our decision is section 601(b)(2) of the Marriage Act, which states as follows:

"Jurisdiction--Commencement of proceeding.

***

(b) A child custody proceeding is commenced in the court:

(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents." (Emphasis added.) 750 ILCS 5/601(b)(2) (West 1992).

The issues on appeal are (1) whether the requirements of section 601(b)(2) of the Marriage Act apply to proceedings under the Parentage Act; (2) if so, whether they apply to prospective intervenors as well as original parties; and (3) if both (1) and (2) are so, whether the Gingers proved that neither of F.Y.'s ...


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