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In re R. L. S.

December 20, 2004

[5] IN THE MATTER OF R. L. S., A MINOR,
MARSHA TIMMONS ON BEHALF OF R. L. S., PLAINTIFF-APPELLANT,
JOHN CLAGGETT AND JERALD CLAGGETT, PLAINTIFFS,
v.
RONALD L. S., DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court for the Thirteenth Judicial Circuit, LaSalle County, Illinois, No. 02-P-320 Consolidated With No. 02-OP-358. The Honorable Eugene P.Daugherity, Judge Presiding.

[7] The opinion of the court was delivered by: Justice McDADE

[8]  Plaintiff, Marsha Timmons, appeals the LaSalle County Circuit Court's dismissal of her petition for guardianship of R.L.S. (born August 27, 1997) for lack of standing. For the reasons that follow, we reverse and remand to the circuit court for further proceedings.

[9]  BACKGROUND

[10]   The relevant facts are not in dispute. Ronald and Karyn S. are R.L.S.'s parents. Karyn died in an automobile accident in December 2002. At the time of her death, Karyn and R.L.S. lived with Karyn's maternal grandmother in Illinois and Ronald lived in Florida. The day after their daughter's death, Karyn's parents, Marsha and Raymond Timmons, filed a petition for guardianship of R.L.S. pursuant to section 11-5 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 2002)). Ronald filed a motion to dismiss, which the circuit court denied. The court appointed petitioners temporary guardians. Following a hearing, the court held petitioners lacked standing to petition for guardianship and dismissed the petition. However, R.L.S. continues to reside with petitioners pursuant to a stay of the court's order. Petitioners appealed, and in November 2004 this court denied Ronald's request for dissolution of that stay. The sole issue before this court is whether petitioners had standing to petition for guardianship.

[11]   ANALYSIS

[12]   The relevant provisions of the Probate Act read, in pertinent part, as follows:

[13]   "(a) Upon the filing of a petition for the appointment of a guardian or on its own motion, the court may appoint a guardian of the estate or of both the person and estate, of a minor, or may appoint a guardian of the person only of a minor or minors, as the court finds to be in the best interest of the minor or minors.

[14]   (b) The court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if (I) the minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consent to the appointment or, after receiving notice of the hearing under Section 11-10.1, fail to object to the appointment at the hearing on the petition or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction. There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence." 755 ILCS 5/11-5 (West 2002). "If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person." 755 ILCS 5/11-7 (West 2002).

[15]   The circuit court stated it denied Ronald's motion to dismiss the petition because it "was under the impression that standing depended solely upon whether Petitioners can rebut the presumption that [Ronald] was willing and able to make day to day decisions concerning [R.L.S.]" but that, following hearing on the petition, it now believed "that the determination of the issue of standing in guardianship proceedings under the Probate Act is the same as the standing requirement of the Marriage Act." The court held that this "standing requirement" was stated in section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/601(b)(2) (West 2002)), which states that a child custody proceeding may be commenced by a person other than a parent "only if [the child] is not in the physical custody of one of his parents." 750 ILCS 5/601(b)(2) (West 2002). Based on the judicial construction of "physical custody" for purposes of that section (see In re Custody of Peterson, 112 Ill. 2d 48, 53-54, 491 N.E.2d 1150, 1152 (1986) ("the standing requirement under section 601(b)(2) should not turn on who is in physical possession, so to speak, of the child at the moment of filing the petition for custody")), the court concluded petitioners lacked standing.

[16]   Petitioners do not argue that R.L.S. was not in Ronald's "physical custody." Instead, petitioners argue the circuit court erroneously applied the standing requirement in section 601(b)(2) to a guardianship proceeding under the Probate Act. The circuit court determined that the requirements of section 601(b)(2) of the Marriage Act must be satisfied in a proceeding under section 11-5 of the Probate Act based on In re Person and Estate of Benny A. Newsome, 173 Ill. App. 3d 376, 527 N.E.2d 524 (1988). The Newsome court held that the standing requirement in section 601(b)(2) incorporated into the Marriage Act the superior rights doctrine, which states that parents have the superior right to the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57, 65-66, 147 L.Ed. 2d 49, 56-57, 120 S.Ct. 2054, 2060 (2000) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"). The Newsome court also found that the Probate Act similarly incorporated the superior rights doctrine through section 11-7 of the Probate Act. Newsome, 173 Ill. App. 3d at 379, 527 N.E.2d at 525, citing In re Custody of Townsend, 86 Ill. 2d 502, 509-10, 427 N.E.2d 1231, 1235 (1981). Finally, the Newsome court concluded that "[b]ecause of the statutory adoption of the superior right doctrine into the Probate Act *** the standing requirement of the Marriage Act applies equally to the guardianship proceedings of the Probate Act." Newsome, 173 Ill. App. 3d at 379, 527 N.E.2d at 525.

[17]   Newsome engrafts language from the Marriage Act into the Probate Act, ostensibly for the purpose of incorporating the superior rights doctrine into the Probate Act. However, the Newsome court recognized that the Probate Act already incorporates the superior rights doctrine, through section 11-7 (755 ILCS 5/11-7 (West 2002)). See Townsend, 86 Ill. 2d at 509, 427 N.E.2d at 1235. Section 601(b)(2) of the Marriage Act arguably provides greater protection to parents' rights by creating a prerequisite (that the minor not be in the custody of one of its parents) to a third party instituting custody proceedings. The legislature may have concluded that such additional protection was not required in proceedings under the Probate Act, "which is only triggered upon the death of a parent." In re Petition of Otakar Kirchner, 164 Ill. 2d 468, 484, 649 N.E.2d 324, 332 (1995). Regardless, how the superior rights doctrine is effectuated in one act is irrelevant to application of the same doctrine in another.

[18]   In Peterson, 112 Ill. 2d at 52, 491 N.E.2d at 1152, the court discussed the ways in which the "superior right of the natural parent is recognized and embodied in our statutory law." The court stated as follows:

[19]   "Under the Juvenile Court Act, a child may not be placed in the custody of a non-parent unless the parents are found to be `unfit.' Similarly, pursuant to provisions in the Adoption Act, consent of the natural parents is necessary for adoption of a child unless the parents are judged `unfit.'" Peterson, 112 Ill. 2d at 52, 491 N.E.2d at 1152.

[20]   However, under the Marriage Act, nonparents must show that the child is not in the physical custody of one of his parents. "When this requirement has been met, the non-parent will be considered for legal custody of the child under the `best interest of the child' standard without necessity of first establishing the unfitness of the natural parents." (Citations omitted.) Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152. The Juvenile Court Act requires "that the minor child be found to be delinquent, in need of supervision, or ...


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