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In re T.W.

June 19, 2006

IN RE CUSTODY OF T.W., A MINOR
(TOM W. WEGER AND CINDY WEGER, PETITIONERS-APPELLEES,
v.
MISTY D. WEGER, RESPONDENT, AND TODD SMITH, RESPONDENT-APPELLANT).



Appeal from the Crawford County. Circuit Court of No. 05-MR-4. Honorable Mark L. Shaner, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

Published opinion

Petitioners, Tom W. Weger and Cindy Weger, filed a petition for the custody of their granddaughter, T.W., under the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/601 et seq. (West 2004)). The circuit court of Crawford County granted the petition and awarded petitioners the custody of T.W. On appeal, T.W.'s father, respondent Todd Smith, raises these issues: (1) whether the award of custody violated his due process rights in light of the recent opinion in In re R.L.S., 218 Ill. 2d 428, 844 N.E.2d 22 (2006), and (2) whether the trial court erred in finding that it was in the best interest of the child to award custody to petitioners. We affirm.

FACTS

On January 13, 2005, petitioners filed a petition for a change of custody regarding their granddaughter T.W. T.W. was born on January 22, 1999. Respondent and Misty D. Weger (T.W.'s mother) were never married. Petitioners are the parents of T.W.'s mother.

Petitioners alleged that T.W.'s mother voluntarily surrendered physical custody of T.W. to them in November 2002 and that T.W. has not been in the physical custody of either parent for more than two years. Respondent filed a response to the petition and also filed a counterpetition for a change of custody. T.W.'s mother filed an entry of appearance consenting to the award of the care and custody of T.W. to petitioners.

The court conducted a bench trial. In addition to testifying on their own behalf, petitioners and respondent presented testimony from several witnesses. The trial court found that T.W. and her mother had lived with her maternal grandparents for the first year and a half of her life. During a period of close to a year, when T.W. was approximately two years old, she and her mother lived at another residence. After this period, T.W. returned to reside with petitioners. T.W. has resided with petitioners since November 2002.

The court noted that respondent did not acknowledge paternity until the Illinois Attorney General instituted an action to obtain child support. The court stated that for approximately two years, respondent had visited with T.W. on a regular schedule of a part of one day on alternate weekends. Respondent had married and recently purchased a new home with three bedrooms. The court noted that respondent's wife was pregnant at the time of the underlying proceeding.

The court found that petitioners had met their burden of showing good cause to overcome the superior rights of respondent. The court described the superior-rights doctrine, upon which it based its decision:

"The parties agree that the standard to be applied in the court's decision is the determination of the best interests of [T.W.] However, as [r]espondent points out, there is a presumption that it is in the child's best interest to be raised by a natural parent. In re Custody of Townsend, 86 Ill. 2d 502, 427 N.E.2d 1231 (1981); In re Custody [sic] of Rudsell, 291 Ill. App. 3d 626, 684 N.E.2d 421 (4th Dist., 1998 [sic]). A third party seeking custody has the burden of showing good reason to supersede the parent's 'superior rights'. In re Guardianship of Alexander O., 336 Ill. App. 3d 325, 783 N.E.2d 673 (2nd Dist., 2003). Case law also shows, however, that this superior right is not absolute, Alexander O. ibid. [sic], and serves as only one factor in determining where the best interest of the child lays [sic]. Montgomery v. Roudez, 156 Ill. App. 3d 262, 509 N.E.2d 499 (First Dist., 1987); In re Custody of Walters, 174 Ill. App. 3d 949, 529 N.E.2d 308 (Third Dist., 1988)."

The court found that under the factors set forth in the Marriage Act, T.W.'s best interests would be served by awarding custody to petitioners. Respondent appeals.

ANALYSIS

Respondent bases his appeal on In re R.L.S., 218 Ill. 2d 428, 844 N.E.2d 22 (February 2, 2006), which was published after the trial court in this case issued its decision. In In re R.L.S., the Illinois Supreme Court addressed the constitutionality of a section of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-1 et seq. (West 2004)). A review of In re R.L.S. reveals that the supreme court was addressing the safeguards provided in the Probate Act and not setting a benchmark for standards under the Marriage Act.

In In re R.L.S., maternal grandparents petitioned for the guardianship of their minor granddaughter under the Probate Act. R.L.S.'s parents had been separated, and R.L.S. had been living with her mother and maternal great-grandmother at the time her mother died in an automobile accident. The respondent moved to dismiss the petition on the grounds ...


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