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In re A.W.

Court of Appeals of Illinois, Fifth District

August 30, 2013

In re A.W., a Minor Kristen W., Petitioner-Appellant, and Emily R., Respondent-Appellee A.W., Intervening Petitioner-Appellant

Rule 23 Order filed Motion to publish granted July 25, 2013 August 30, 2013

Held [*]

The trial court’s orders dismissing the petition for guardianship of the minor child of petitioner’s deceased husband and awarding custody to respondent mother on the ground that petitioner lacked standing were reversed, notwithstanding the mother’s contention that she was willing and able to carry out child-care decisions for the child and the facts that the mother was alive, her whereabouts were known and her parental rights had not been terminated, since the trial court entered the orders without hearing evidence, including evidence supporting petitioner’s claim that the mother was unfit, and the cause was remanded for an evidentiary hearing on the issue of whether petitioner had standing, that is, whether she could rebut, by a preponderance of the evidence, the presumption that the child’s mother was willing and able to carry out child-care decisions for the child.

Appeal from the Circuit Court of Madison County, Nos. 12-P-509, 01-F- 443; the Hon. David Grounds, Judge, presiding.

Amanda Bradley Verett, of Edwardsville, and Margaret J. Walsh, of St. Louis, Missouri, for appellants.

Christine S.P. Kovach, of Kovach Law, PC, of Highland, for appellee.

Panel JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.

OPINION

WEXSTTEN JUSTICE

¶ 1 The petitioner, Kristen W., and the intervening petitioner, A.W., appeal the circuit court's dismissal of Kristen's petition for guardianship of A.W. and the circuit court's order awarding custody of A.W. to the respondent, Emily R. We reverse and remand.

¶ 2 FACTS

¶ 3 A.W., born on December 11, 2000, is the 12-year-old daughter of James W., who is deceased, and Emily, both of whom were minors when A.W. was born. On January 31, 2001, the circuit court granted a petition for coguardianship of A.W., filed by Rebecca and William Schooley, Emily's mother and stepfather. On November 19, 2002, this guardianship was terminated.

¶ 4 In a March 26, 2008, petition for custody, James asserted that he had, "for years, maintained a stable home for" A.W., that Emily "was and is incapable of and uninterested in full[-]time parenting, " and that Emily had "at all times required the assistance of relatives to maintain even basic care for" A.W. Accordingly, on March 28, 2008, the circuit court transferred physical possession of A.W. to James. Over two years later, on October 14, 2010, the circuit court entered a permanent order for custody, awarding legal and physical custody to James. In its order, the circuit court noted that "[a]s a result of various life circumstances, the physical custody of [A.W.] has not been primarily with" Emily and that A.W. had lived in the custody of James "for a period of time in excess of five years."

¶ 5 On October 3, 2012, James died. He had last resided with A.W. and his wife, Kristen. Prior to his death, he executed a last will and testament, designating Kristen as guardian of the person and estate of A.W. From the time of his death until March 2013, A.W. remained in Kristen's home, and Kristen shared visitation with Emily.

ΒΆ 6 On October 10, 2012, in circuit court case number 12-P-509, Kristen filed a petition for guardianship of A.W. under the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 2012)). In her petition, she alleged that Emily was unable to make or carry out day-to-day decisions concerning A.W. Kristen asserted that Emily's history demonstrated that she was wholly unfit to care for A.W. and that she had relinquished that responsibility first to her parents, who ...


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