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In Re Marriage of

February 2, 2012

IN RE MARRIAGE OF MIKI LOVELAND MANCINE,
PETITIONER-APPELLEE,
AND
NICHOLAS F. GANSNER,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. 10 D 9394 The Honorable Nancy J. Katz, Judge Presiding.

The opinion of the court was delivered by: Justice Pucinski

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Sterba concurred in the judgment and opinion.

OPINION

¶1 In divorce proceedings below, the husband, respondent Nicholas Gansner, sought custody of a minor child, William Gansner, who had been adopted by the mother, petitioner Miki Loveland Mancine, but Nicholas never filed a petition for adoption. The child was not the biological child of either Miki or Nicholas. The circuit court granted Miki's motion to dismiss on the grounds that Nicholas lacked standing. We affirm the dismissal because: (1) Illinois has not adopted the "equitable parent" doctrine and Nicholas has no standing as a parent to seek custody under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2010)), the Illinois Parentage Act (750 ILCS 40/1 et seq. (2010)), or the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2010)); (2) equitable estoppel did not apply to bar a finding that Nicholas was not a parent due to Miki's holding out of him as the parent, where the husband was aware at all times that William was not his biological child and that formal adoption was necessary; (3) Illinois does not recognize "equitable adoption" in child custody proceedings and a "contract to adopt" theory did not apply where there was no contract; (4) there was no basis to invoke the parens patriae power under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2010)); and (5) there is no requirement that the child must be adjudicated to have a father and Miki legally adopted the child as a single person.

¶2 BACKGROUND

¶3 Miki and Nicholas began dating in the spring of 2008. At that time, Miki was separated from her then-husband, John Mancine. Miki had a one-year-old adopted daughter named Elizabeth and had begun the process of adopting a second child, William, and was matched with a birth mother. Miki and Nicholas decided they would marry in approximately June or July of 2008. Because Miki had already started the adoption process of William as a single parent before she met Nicholas, Miki and Nicholas were advised by the adoption agent to finish the process of Miki's adoption of William, and then for Nicholas to adopt William as a stepparent after the parties' marriage. At the time, Miki and Nicholas resided in Wisconsin, where unmarried couples cannot simultaneously adopt a child. See Wis. Stat. Ann. § 48.82 (West 2008).

¶4 William was born on August 5, 2008, and his birth certificate reflected the name "William Michael Gansner." In early September 2008, the adoption agent visited Miki and Nicholas to update the home study completed in January 2008 because Nicholas had moved in with Miki and was co-parenting William. Miki's adoption of William was not yet finalized due to the six-month statutory waiting period. In the adoption agent's report of February 27, 2009, the agent noted that Miki named Nicholas as the sole guardian of William and any future child she has, and named her parents as alternate guardians. Nicholas took care of William, including diaper changes and feedings. On November 2, 2008, William was baptized. The church record for the baptism listed William's "parents" as Nicholas and Miki. Nicholas and Miki became formally engaged in December 2008.

¶5 William's adoption by Miki as a single adult was finalized in Wisconsin on March 4, 2009. The adoption papers identified William as "William Michael Gansner." Nicholas and Miki got married in May 2009. It was both Nicholas' and Miki's intent that Nicholas formally adopt William as a stepparent after their wedding. Miki had contacted William's adoption agent before their wedding and arranged for her to visit them immediately following the wedding to perform a screening for Nicholas' adoption of William. In June 2009 the adoption agent performed the stepparent adoption screening of Nicholas. The agent's report of June 9, 2009, reflected that the adoption agency intended to support the granting of Nicholas' stepparent adoption petition. In Nicholas' affidavit in support of his pleadings, he attached an e-mail from the adoption agent to Nicholas dated August 6, 2010, informing Nicholas that he was free to file his stepparent adoption petition, and he averred that this is a true and correct copy of the e-mail.

¶6 At that time, Nicholas and Miki had already started the process of adopting yet another child, Henry, and were in the process of moving from Wisconsin to Chicago, Illinois, to be closer to Miki's parents. Nicholas alleges that he was under the impression that he and Miki had to assemble a number of documents to accompany his adoption petition. Later, he learned that he simply had to provide a form petition and include a copy of the order of Miki's adoption of William. Nicholas alleges in his brief that "[a]s a result of all of these factors, the ministerial act of filing the stepparent adoption papers just never happened." It is undisputed that respondent never filed a petition to adopt William.

¶7 Nicholas and Miki moved to Chicago with Elizabeth and William. Henry was born on September 16, 2009. Nicholas alleges that since he was out of work and Miki was traveling for her job, he was the primary caretaker of the three children. Nicholas avers in his affidavit that on August 6, 2009, Miki e-mailed him asking, "Have you made any progress toward adopting William???? I would like you to take care of that ASAP," and telling Nicholas to "call Carol Gapen from law center for children and families."

¶8 Nicholas eventually became employed in a full-time position as an assistant Attorney General for the State of Illinois. Nicholas maintains he continued to act as the three children's primary caretaker and took Elizabeth and William to day care and Henry to Miki's parents' house every morning. In the evenings, Miki's mother and a nanny would pick up the children from day care and bring them home to be with Nicholas. Nicholas was listed as the children's parent at their day care facility. According to Nicholas, Miki always held out William as Nicholas' child and held out herself, Nicholas, Elizabeth, William and Henry as "the Gansner family."

¶9 Miki filed a petition for dissolution of marriage and served Nicholas with summons for dissolution of marriage on September 24, 2010. In Miki's petition, she alleged that she and Nicholas had only one child, Henry, and that Nicholas was a fit and proper person to share joint custody of Henry. On December 6, 2010, Nicholas filed his response to Miki's petition for dissolution of marriage and his counterpetition for dissolution of marriage. In both pleadings, Nicholas sought sole custody of William and Henry. On December 16, 2010, Miki filed her motions to dismiss Nicholas' claim for sole custody of William in his response and counter-petition, pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)), based on the fact that William had no standing to seek custody of William. On March 14, 2011, the circuit court issued its ruling granting Miki's motions to dismiss, followed by a written order. Nicholas timely appealed.

¶10 ANALYSIS

¶11 The issue presented by the present appeal is whether a nonbiological father has standing to seek custody of a child he intended to adopt but never formally adopted. Nicholas argues that the court erred in granting Miki's section 2-619 motion to dismiss Nicholas' request for custody based on his lack of standing due to the fact that he never adopted William. "Standing in Illinois requires 'some injury in fact to a legally cognizable interest.' " Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 938 (2009) (quoting Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988)).

¶12 Nicholas does not dispute that he never adopted William and thus is not his legal parent. Rather, Nicholas makes the following equitable arguments that he should have standing to seek custody: (1) Illinois courts should revisit the concept of "equitable parent" and Nicholas should be recognized as William's "equitable parent"; (2) that Miki should be equitably estopped from challenging Nicholas' request for custody due to her own representations that Nicholas was William's father; (3) that his "equitable adoption" of William should be recognized, even though he did not undertake the "ministerial act" of filing a petition for adoption; (4) that the court should apply a plenary parens patriae power to award Nicholas custody; and (5) the court's adjudication that Nicholas is not William's parent should not be allowed to stand because it leaves William fatherless. Where the facts in a case are uncontroverted, we review a trial court's order granting a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2010)) de novo. Boelkes v. Harlem Consolidated School District No. 122, 363 ...


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