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In re Custody of K.P.L.

April 16, 1999

IN RE CUSTODY OF K.P.L., A MINOR CHRISTOPHER M. L., PETITIONER-APPELLANT,
v.
KENJULA L. L., GARY L. G., AND CHERYL A. G., RESPONDENTS-APPELLEES GARY L. G. AND CHERYL A. G., COUNTERPETITIONERS-APPELLEES KENJULA L. L., COUNTERRESPONDENT, CHRISTOPHER M. L., COUNTERRESPONDENT-APPELLANT IN RE CUSTODY OF K.P.L., A MINOR CHRISTOPHER M.L., APPELLANT,
v.
KENJULA L. L., GARY L. G. AND CHERYL A. G., APPELLEES



Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, No. 97--MR--2

The opinion of the court was delivered by: Justice Breslin

(Consolidated with 3-98-0066)

Honorable Dan A. Dunagan, Judge, Presiding

Christopher M. L. (Christopher) challenges the trial court's decision in a custody case filed under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601(b)(2) (West 1996)). In the court below, Christopher petitioned for custody of his minor son (Baby K), while Baby K's legal guardians, Gary L. G. (Gary) and Cheryl A. G. (Cheryl), counterpetitioned. The court awarded custody to Gary and Cheryl based solely upon a best interest analysis. On appeal, Christopher contends that (1) Gary and Cheryl did not have standing to petition for custody, and (2) the court's failure to vacate Gary and Cheryl's guardianship and the subsequent grant of custody to Gary and Cheryl were against the manifest weight of the evidence. Pursuant to the following Discussion, we affirm. In so doing, we hold that Christopher waived any objection that he had concerning Gary and Cheryl's standing by not properly raising the issue as an affirmative defense in a motion to dismiss during the time of the pleadings.

BACKGROUND

In compiling this factual summary, we have relied extensively on the exposition of the facts as detailed in the trial court's order. Christopher and Kenjula L. L. (Kenjula) began a relationship when she was approximately 14 years old and he was approximately 17 years old. The relationship was tumultuous, characterized by incidences of physical violence by Christopher toward Kenjula.

In April of 1994, when Christopher was charged with aggravated criminal sexual abuse of a minor, Kenjula terminated her relationship with him. She then began a relationship with Chris G. (C. G.), who was 16 years old at the time. Kenjula was 17 years old. Shortly after beginning this new relationship, Kenjula discovered that she was pregnant. When Christopher discovered the pregnancy and questioned Kenjula about it, Kenjula told him that C. G. was the father. During this time period, Christopher's charge for aggravated criminal sexual abuse was pending. In July of 1994, Christopher failed to appear in court for a sentencing hearing and fled to the State of Iowa.

Baby K was born in December of 1994. His birth certificate gave him Kenjula's last name and failed to list a father. Christopher returned to the State of Illinois and was incarcerated in February of 1995. He was sentenced in March and completed his prison sentence in May of 1995. After his release from custody, Christopher wished to prove himself to be Baby K's father. He could not, however, afford an attorney nor did he have the money to obtain blood tests. In the hope of receiving a free paternity test, he contacted the Jerry Springer Show. Kenjula and C. G. agreed to appear on the show and Christopher saw Baby K for the first time at that show. However, the show failed to conduct a paternity test.

At various times in 1995, Kenjula, C. G. and Baby K lived with C. G.'s parents, Gary and Cheryl. Because Kenjula was not providing sufficient care for Baby K, Gary and Cheryl began to provide increasing amounts of care for him themselves. Kenjula testified that C. G. knew from the beginning that he was not Baby K's father. Gary and Cheryl also testified that they doubted their son was Baby K's father and knew that Christopher was asking for bloodtests to determine his paternity. Nonetheless, they claimed they did not know the identity of Baby K's father.

Sometime in 1995, Kenjula became pregnant with C. G's child. By March of 1996, however, Kenjula had ended her relationship with C. G. and was living in a motel room with her two children. Subsequently, with Kenjula's permission, Christopher visited Baby K. Cheryl also visited Kenjula and the two children. Cheryl testified that the children were filthy and crawling with insects. She asked to take the children home with her because of the deplorable conditions in which the children were living. Kenjula consented and Cheryl took them to her home. After cleaning them up, Cheryl decided that she would not let the children go back to the motel.

Kenjula agreed to allow the children to remain with Gary and Cheryl for an extended period of time. Gary and Cheryl then petitioned for guardianship of both Baby K and his little brother, stating that they were the children's paternal grandparents. Kenjula and C. G. stated that they were the parents of both children and consented to Gary and Cheryl being given guardianship. Christopher was given no notice of the guardianship proceedings and the court was not informed that Christopher was possibly the father of Baby K. Gary and Cheryl were named legal guardians of Baby K and his little brother in July of 1996.

When Christopher was finally able to hire an attorney, he filed a paternity action and bloodtests were ordered. In November of 1996, Christopher was found to be the father of Baby K. Baby K's birth certificate was amended to list his last name as that of Christopher and to name Christopher as his father.

Christopher filed the present custody action in January of 1997. In his petition, Christopher alleged that he had sought to establish a parent-child relationship with his child but was prohibited from doing so by Kenjula and Gary and Cheryl. He alleged that Gary and Cheryl were not related to Baby K and that they had obtained guardianship by the false assertion that they were Baby K's paternal grandparents. Further, he alleged that he was not given notice of the guardianship proceedings and that he was willing, able and fit to take custody of Baby K. He asked the court to vacate Gary and Cheryl's guardianship and to grant him custody of Baby K.

In their answer, Gary and Cheryl admitted that Christopher was Baby K's natural father and that they were not related to Baby K, but they denied having obtained guardianship based on false information. Gary and Cheryl counterpetitioned for custody, claiming that Baby K had resided with them since May of 1996 and that he continued to reside with them. In their counterpetition, Gary and Cheryl alleged that Baby K was not in the physical custody of either of his parents. In his answer to the counterpetition, ...


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