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In re Custody of Groff

August 7, 2002

IN RE CUSTODY OF ABAGAIL M. GROFF, A MINOR
(PHILLIP A. GROFF AND CAROL A. GROFF, PETITIONERS-APPELLEES,
v.
ABAGAIL M. GROFF AND ALBERT K. SEAGLE, RESPONDENTS, AND CHRISTINA L. GROFF, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Marion County. No. 99-F-46 Honorable David L. Sauer, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn

Rule 23 Order filed June 19, 2002; Motion to publish granted August 7, 2002.

This case arrives in our court on appeal for the second time. The original appeal to this court involved Judge David L. Sauer's order in which he refused to vacate an order that had been entered one week earlier. That order awarded the custody of a minor child to the maternal grandparents (Phillip A. Groff and Carol A. Groff (the Groffs)) by consent. The child's mother, Christina L. Groff, either had a change of heart or, as she contends, did not understand that what her parents were asking her to sign was something more than a designation that, upon her incapacitation or death, they would receive the custody of her minor child.

Before we get to the issues raised in this appeal, we will briefly provide this case's factual background. Christina gave birth to a child on May 16, 1999. Custody issues had been discussed prior to the child's birth. Christina resided in West Frankfort, Illinois, while the Groffs resided in Sandoval, Illinois. Shortly after the child's birth, Christina and her baby went to her parents' home to spend a few days. After the visit, she and the baby returned to their home. They returned to Sandoval for another visit on or about June 7, 1999, at which time custody issues were again discussed.

On June 9, 1999, the Groffs presented Christina with an entry of appearance, a waiver, and a consent, along with a petition to establish custody. Christina signed the entry and took an identical set to the child's natural father. The natural father, Albert K. Seagle, signed his set on June 9, 1999. On June 11, 1999, the Groffs took all of the documents to court, and the ex parte order awarding custody of Christina's child to the Groffs was entered.

Christina received a copy of the order on June 16, 1999, upon which she immediately sought legal advice. The following day, June 17, 1999, Christina filed a motion to vacate the June 11, 1999, order. She did not file a separate motion seeking to withdraw or otherwise invalidate her entry of appearance, which contained her consent to a change of guardianship. Christina claimed that the consent was obtained under duress and coercion on the part of her mother. The motion stated emphatically that Christina did not intend to relinquish the custody of her child.

She supplemented her motion to vacate on August 9, 1999, claiming that the Groffs lacked standing to seek the custody of her child.

On August 27, 1999, the trial court held an evidentiary hearing. Testimony from Christina, the Groffs, and Christina's sister, Kathy Groff, was taken. Kathy Groff's testimony shed some light on the original reason for these legal maneuvers. She testified that before the baby was born, she overheard conversations between Christina and her parents regarding the unborn child's custody. The Groffs did not want the baby's natural father to be able to obtain the custody of the child in the event that Christina died. To help Christina get established, her parents agreed to care for the child after it was born, until Christina had a place to live. Kathy Groff believed that her parents would maintain the custody of the baby after Christina found her place to live.

Following the hearing, the trial court entered an order on September 13, 1999. Judge David L. Sauer found that the Groffs had standing because the minor child (and the child's mother) were living under their roof when the petition was filed and because both parents signed the consent to the child's custody being placed with the Groffs. Judge Sauer stated that he did not find that Christina signed the consent under duress or coercion. He denied both of Christina's motions. On that same date, Judge Sauer entered an order of visitation on behalf of Christina and the child.

Christina appealed to this court. In that appeal, we ordered Judge Sauer to vacate the default order awarding custody of the minor child to the Groffs. In re Custody of Groff, No. 5-99-0653, order at 5 (October 4, 2000) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). The issue of the Groffs' standing to seek custody was raised in that appeal, but because we concluded that Judge Sauer abused his discretion and that the default order should be vacated, we found that it was unnecessary to address the standing issue. In re Custody of Groff, order at 5.

Judge Sauer ultimately vacated the default order on November 9, 2000. In the transcript of the recorded hearing, it seems clear that Judge Sauer was confused by this court's order. He indicated that because we failed to rule upon the worthiness of Christina's original entry of appearance by which she consented to the custody change, the situation had not changed.

From oral argument of this case, we learned that by docket entry, Judge Sauer ordered that the minor child remain in the custody of the Groffs, subject to Christina's right to visitation. That docket entry is not a part of the record, but the parties agree that there was no hearing held prior to the order's entry and no evidence was produced about the best interests of the minor child.

On November 9, 2000, the Groffs filed a new petition for temporary and permanent custody. On November 14, 2000, Christina filed a motion to dismiss the Groffs' petition and also filed a habeas corpus petition seeking to have her child produced and turned over to her pending the custody determination. In this petition, Christina argued that once the original order was vacated, there was no order authorizing the Groffs to retain custody since the order granting them custody was no longer in existence. Her petition also alleged that the Groffs lacked standing to seek custody. The trial court denied her petition on February 2, 2001. This appeal results from that denial.

Section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act provides, "A child custody proceeding is commenced in the court[,] *** 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." 750 ILCS 5/601(b)(2) (West 2000). Determining whether the non-parent has standing to seek the custody of a minor child requires making this initial finding. In re Marriage of Sechrest, 202 Ill. App. 3d 865, 870, 560 N.E.2d 1212, 1214 (1990) (relying on In re Custody of Peterson, 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152 (1986)). Only after finding that the non-parent has standing can the trial court turn to the issue of custody. In re Marriage of Sechrest, 202 Ill. App. 3d at 870, 560 N.E.2d at 1214 (relying on In re Custody of Peterson, 112 Ill. 2d at 52, 491 ...


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