Appeal from the Circuit Court of Du Page County. No. 96--D--3143 (Jean K. Tawrel, Petitioner-) Honorable Robert J. Anderson and Thomas J. Riggs, Judges, Presiding.
The opinion of the court was delivered by: Justice Geiger
The respondents, Linda Patterson and Mitch Patterson, appeal from the September 23, 1999, order of the circuit court of Du Page County awarding sole custody of A.W.J. to the petitioner, Jean Tawrel. On appeal, the Pattersons argue that (1) Tawrel lacked standing to seek custody of A.W.J.; (2) the trial court erred in failing to treat the instant proceeding as a request to modify custody; and (3) the trial court's ruling awarding custody to Tawrel was against the manifest weight of the evidence. The latter two arguments are disposed of in the nonpublished portion of this opinion.
The facts relevant to the disposition of this appeal are as follows. A.W.J. was born on August 13, 1995, to Aileen Tawrel and Richard J. Aileen Tawrel and Richard J. were never married, although they lived together with A.W.J. until July 21, 1996. On that date, Richard J. was alleged to have murdered Aileen Tawrel. Richard J. was subsequently convicted of first-degree murder and sentenced to 40 years' imprisonment. Jean Tawrel is A.W.J.'s maternal grandmother, and Linda Patterson is A.W.J.'s paternal grandmother. Linda Patterson is presently married to Mitch Patterson. Mitch Patterson is Linda Patterson's second husband and is not a blood relative of A.W.J.
Immediately following Aileen Tawrel's death, Richard J. took A.W.J. to the home of his grandmother, Ruth Tovella. On July 23, 1996, Jean Tawrel went to Tovella's home and took A.W.J. On July 30, 1996, Tawrel filed a petition for guardianship of A.W.J. pursuant to the provisions of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/11--5 (West 1996)).
On August 9, 1996, while incarcerated at the Du Page County jail, Richard J. executed a document that appointed his mother, Linda Patterson, as short-term guardian of A.W.J. for a period of 60 days pursuant to section 11--5.4 of the Probate Act (755 ILCS 5/11--5.4 (West 1996)).
On August 16, 1996, the trial court entered an order dismissing Tawrel's petition for guardianship for lack of subject matter jurisdiction. See 755 ILCS 5/11--5(b) (West 1996). Although there is no transcript from this proceeding, it appears that the trial court concluded that Jean Tawrel lacked standing under the Probate Act to seek guardianship because Richard J.'s parental rights to A.W.J. had not been terminated and because he had already appointed Linda Patterson to act as guardian. Following the trial court's ruling, A.W.J. was placed in the physical custody of Linda and Mitch Patterson.
A.W.J. continued to reside with Linda and Mitch Patterson in the months that followed. On October 8, 1996, Richard J. executed a second short-term guardian appointment, again appointing Linda Patterson as A.W.J.'s guardian for the next 60 days.
On November 19, 1996, Tawrel filed a petition seeking custody of A.W.J. pursuant to section 601(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/601(b) (West 1996)). Linda Patterson, Mitch Patterson, and Richard J. were named as respondents in the proceeding. The petition alleged that it was in A.W.J.'s best interests to be placed in both the temporary and permanent physical possession and custody of Tawrel. The petition also requested that Tawrel be awarded immediate unrestricted visitation with A.W.J. and that trial court enter a visitation schedule. The petition also sought the appointment of a guardian ad litem (GAL) to represent A.W.J.'s interests in the proceedings.
In addition to her request for custody of A.W.J., Tawrel's petition requested additional relief under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1--1 et seq. (West 1996)) and the Adoption Act (750 ILCS 50/0.01 et seq. (West 1996)). Specifically, Tawrel requested that (1) A.W.J. be adjudicated neglected and made a ward of the court; (2) that she be appointed guardian of A.W.J.; (3) that Richard J.'s parental rights to A.W.J. be terminated; and (4) that she be permitted to adopt A.W.J.
Following the filing of the petition, the trial court ordered that Tawrel be permitted to have visitation with A.W.J. three times a week. The trial court ordered that visitation would occur on Tuesdays and Thursdays from 4:30 p.m to 8:30 p.m. and on Saturdays from 10 a.m. to 5:30 p.m.
On December 16, 1996, the Pattersons filed various motions seeking to dismiss the petition. The Pattersons argued that Tawrel was without standing to bring a petition for custody because section 601(b) of the Act permits a non-parent to initiate a custody proceeding only if the child is "not in the physical custody of one of his parents" (750 ILCS 5/601(b)(2) (West 1996)). The Pattersons argued that, although incarcerated, Richard J. still retained legal custody of A.W.J. and had placed him in the physical custody and guardianship of Linda Patterson. The Pattersons argued that, without physical custody of the child, Tawrel lacked standing to seek custody.
The Pattersons also challenged the sufficiency of the petition's allegations seeking the termination of Richard J.'s parental rights to A.W.J., the appointment of Tawrel as guardian, and Tawrel's request to adopt A.W.J. The Pattersons argued that the petition failed to allege facts demonstrating that A.W.J. had been abused or neglected by Richard J. or that he was otherwise unfit to be a parent. The Pattersons also argued that the petition failed to alleged facts demonstrating that A.W.J.'s present home environment was injurious to his welfare.
In response, Tawrel argued that section 601(b) of the Act did not require that she have physical custody of A.W.J. in order to have standing to file a petition for custody. Rather, she argued that all the statute requires for a non-parent to have standing is that the minor child not be in the physical custody of one of his parents. Tawrel argued that, by virtue of his incarceration, Richard J. did not have physical or legal custody of A.W.J. and was unable to fulfill his role as A.W.J.'s custodian. Additionally, Jean Tawrel argued that her allegations under the Juvenile Court Act and the Adoption Act were legally sufficient to withstand dismissal.
On January 8, 1997, following argument of counsel, the trial court denied the Pattersons' motion to dismiss that portion of the petition seeking custody of A.W.J. In so ruling, the trial court found that Tawrel had standing to initiate a custody proceeding pursuant to section 601(b) of the Act. The trial court also denied the Pattersons' motion to dismiss that portion of the petition seeking relief under the Juvenile Court Act and the Adoption Act. However, as to these latter allegations, the trial court indicated that it would stay the proceedings "to wait for the State's Attorney to decide whether or not ...