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In re Marriage of Timothy Feig

May 01, 1998

IN RE: THE MARRIAGE OF TIMOTHY FEIG PETITIONER-APPELLANT, AND KATHERINE FEIG, N/K/A KATHERINE BRADY, DEFENDANT, AND MILTON BRADY AND CYNTHIA BRADY, INTERVENORS-APPELLEES.


Judicial Circuit, County, Illinois Appeal from the Circuit Court of the 21st Iroquois No. 91 D 151 Honorable Clark Erickson Judge Presiding

Holdridge, J. Breslin and Slater, JJ., concurred.

The opinion of the court was delivered by: Justice Holdridge

This is an interlocutory appeal from a decision of the circuit court of Iroquois County which allowed Milton and Cynthia Brady (the Bradys) to intervene and petition for custody in a pending modification of custody proceeding concerning their granddaughter, Nikita Feig (Niki), the minor child of Timothy Feig (Tim) and Katherine Brady (Kathy).

Facts

In April 1992, Tim and Kathy's marriage was dissolved. The parties entered into a marital settlement agreement wherein Tim agreed to Kathy's sole custody of Niki, subject to his reasonable visitation. At the time of the divorce, the military had stationed Tim in California, and Kathy and Niki resided with the Bradys. During the summer of 1992, Kathy and Niki moved to California and resided with Tim for approximately six months. Thereafter, Kathy and Niki moved back to the Bradys. Although Niki has primarily lived with the Bradys since she was six months old, Kathy has resided with them on and off.

In the summer of 1994, Kathy and her father delivered Niki to Tim's parents in Indiana in order for her to travel with them to California for summer visitation with Tim. Tim was to return Niki prior to the start of school, however, Tim kept her until after the beginning of the school year.

In August 1994, Tim filed a petition to modify custody in the circuit court of Iroquois County, alleging that Kathy frequently absented herself from Niki and undertook a transient and unstable lifestyle.

At a hearing for temporary relief, the Bradys appeared with counsel, and Kathy appeared without counsel. Tim objected to the Brady's participation in the proceeding without filing a formal petition to intervene and challenged their standing. The Bradys stated that they did not intend to seek custody of Niki. The matter was set for hearing, and the court invited the Bradys to formally intervene. Pending determination of the modification petition, the court ordered Tim to return Niki to Kathy, conditioned upon Niki residing with the Bradys.

At an October 1994 hearing, the Bradys advised the court that they would not formally intervene in the case. The case was continued, and in January 1995, the matter was taken under advisement. During this time, Tim filed a motion to re-open the evidence. Tim alleged that he had moved to Indiana to be closer to Niki, and that Kathy had taken up a separate residence from Niki. Tim also filed several rules to show cause against Kathy, alleging that he was deprived visitation with Niki.

In February 1996, Kathy's attorney withdrew from the case. In March 1996, after the Bradys allegedly denied Tim visitation, and with Kathy's whereabouts unknown, Tim filed a petition for writ of habeas corpus against them. In April 1996, the Bradys filed a petition to intervene for custody. Over Tim's standing objection, the court allowed the Bradys time to present evidence and rescheduled the case for hearing.

The Bradys withdrew and dismissed their petition to intervene and for custody. Tim and Kathy continued to present evidence on the modification petition. In August 1996, the Bradys once again informed the court that they did not intend to file a petition to intervene. On November 22, 1996, the Bradys filed a motion to reinstate their petition to intervene, which was set for hearing in June 1997. Tim filed a motion to dismiss, the court granted the motion finding that the petition did not allege acquiescence or abandonment by Tim. However, the court allowed the Bradys leave to refile, which they did. In June 1997, and over Tim's objection, the court held an evidentiary hearing concerning the Brady's standing to intervene.

Testimony was presented and at the close of the Brady's case, Tim moved for a directed finding denying the petition to intervene. The court found that the Bradys had standing and allowed the petition to intervene. At Tim's request, the court certified the question for an immediate interlocutory appeal, which was allowed in August 1997.

Analysis

Standin ...


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