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In re A.W.J.

October 18, 2001

IN RE A.W.J.
(JEAN TAWREL, APPELLEE,
v.
LINDA PATTERSON ET AL., APPELLANTS).



The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 90446-Agenda 27-May 2001.

A.W.J. is a minor whose father killed his mother. While A.W.J.'s father was in pretrial custody, A.W.J.'s maternal grandmother filed a custody petition in the circuit court of Du Page County pursuant to section 601(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/601(b) (West 1996)). The petition was opposed by the paternal grandparents. The trial court granted custody to the maternal grandmother in a final order which contained Rule 304(a) language. The paternal grandparents appealed, and the appellate court affirmed (316 Ill. App. 3d 91). The father died while the appeal was pending. We granted leave to appeal. 177 Ill. 2d R. 315(a). The sole question on which the paternal grandparents sought leave to appeal is whether the maternal grandmother had standing to bring the petition. We now affirm.

BACKGROUND

A.W.J. was born to Aileen Tawrel and Richard J. on August 13, 1995. Aileen and Richard lived together, with A.W.J., until July 21, 1996, on which date Richard killed Aileen. After Aileen's death, before his apprehension by the authorities, Richard brought A.W.J. to the home of Ruth Tovella, Richard's grandmother. On July 23, Jean Tawrel, A.W.J.'s maternal grandmother, went to Tovella's home and retrieved A.W.J.

A week later, Jean filed a petition for guardianship of A.W.J. pursuant to the Probate Act of 1975 (755 ILCS 5/11-1 et seq. (West 1994)). However, the circuit court dismissed this petition for lack of subject matter jurisdiction in August, after Richard appointed his mother, Linda Patterson, short-term guardian of A.W.J. See 755 ILCS 5/11-5.4 (West 1994). Thereafter, Richard continually reappointed Linda short-term guardian of A.W.J. every 60 days.

After the dismissal of the Probate Act petition, A.W.J. was placed in the custody of Linda Patterson and Mitch Patterson, her husband. Jean then filed the petition which forms the basis for the instant proceedings, seeking custody of A.W.J. pursuant to section 601(b) of the Act (750 ILCS 5/601(b) (West 1994)). In addition to custody, the petition also requested: that the court block any further visitation with Richard; that Richard's parental rights be terminated; and that Jean be permitted to adopt A.W.J.

The Pattersons moved to dismiss the petition for lack of standing. The Pattersons noted that the statute permits a non-parent to initiate a custody proceeding only with respect to a child not in the "physical custody" of one of his parents. See 750 ILCS 5/601(b)(2) (West 1994). They argued that Richard retained legal custody of A.W.J. despite his incarceration, and Jean lacked standing because she was not in possession of A.W.J. The trial court denied the motion.

After the denial of the motion to dismiss, the Pattersons filed a counter-petition for custody under section 601(b) of the Act. There, they alleged that A.W.J. "is not within the physical possession of his natural father, the sole surviving parent, [Richard]," and that "the physical custody of [A.W.J.] has been voluntarily relinquished by [Richard] to [the Pattersons]."

The court conducted a hearing to determine what custody arrangement would be in the best interests of A.W.J. The court heard testimony from the parties involved, as well as expert testimony. Afterwards, the court granted sole custody to Jean and curtailed all contact between A.W.J. and his father. The court reserved ruling on the issues of termination of parental rights and adoption. Shortly thereafter, the court entered an order to the effect that the ruling on custody and visitation was final and there was no just reason for delaying enforcement or appeal. See 155 Ill. 2d R. 304(a). The Pattersons filed a timely notice of appeal.

Before the appellate court, the Pattersons contended that Jean lacked standing to petition for custody under section 601(b); that the trial court should have treated the proceeding as a petition to modify custody, rather than as an original custody petition; and that the trial court's ruling awarding custody to Jean was against the manifest weight of the evidence. 316 Ill. App. 3d at 92. With respect to the first issue, the appellate court concluded that Jean had standing because A.W.J. was not in the physical custody of either parent, since "it is not possible for a parent who is incarcerated to act as the physical custodian of his or her children." 316 Ill. App. 3d at 98. In an unpublished portion of the disposition, the court rejected the other two arguments as well, and affirmed the trial court in all respects. The Pattersons then filed for leave to appeal to this court. See 177 Ill. 2d R. 315(a).

ANALYSIS

I.

Although multiple issues were raised before the appellate court, the only question the Pattersons raised in their petition for leave to appeal to this court is whether Jean had standing to file her petition. In their arguments concerning this issue, the parties debate the meaning of section 601(b)(2) of the Act, specifically the provision which allows nonparents to commence custody proceedings if a child "is not in the physical custody of one of his parents." 750 ILCS 5/601(b)(2) (West 1992). Jean contends that A.W.J. should not have been considered to be in Richard's "physical custody" during Richard's incarceration. The Pattersons disagree, noting that Richard had not ...


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