from Circuit Court of McLean County No. 15F370 Honorable
William A. Yoder, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Presiding Justice Harris and Justice DeArmond
concurred in the judgment and opinion.
1 In December 2015, petitioners, Crystal Young and her
husband Michael Young, filed a "petition to establish
custody" of Crystal's granddaughter, J.H. (born
November 20, 2006), pursuant to section 601 of the Illinois
Marriage and Dissolution of Marriage Act (Dissolution Act)
(750 ILCS 5/601 (West 2014) (recodified as amended by Pub.
Act 99-90 (eff. Jan. 1, 2016) at 750 ILCS 5/601.2). In their
petition, the Youngs alleged that they had cared for and made
decisions on behalf of J.H. since she was an infant, in
cooperation with J.H.'s mother, respondent Kourtney
Herman. Kourtney claimed that the Youngs lacked standing to
bring their petition and that it was not in J.H.'s best
interests for the Youngs to have custody.
2 Over a series of hearings in July, August, September, and
October 2016, the trial court heard evidence. In October
2016, the court determined that the Youngs had standing and
that it was in J.H.'s best interests to award the Youngs
primary parental decision-making responsibility for J.H. This
3 I. BACKGROUND
4 A. The Youngs' Petition to Establish Custody
5 In December 2015, the Youngs filed a petition to establish
custody of J.H. pursuant to section 601 of the Dissolution
Act (750 ILCS 5/601 (West 2014)). The petition alleged that
Crystal was J.H.'s paternal grandmother and that Michael
was her husband. The Youngs claimed that J.H. had been in
their "physical care, custody, and control" since
she was two months old. The Youngs further claimed that
J.H.'s mother, Kourtney, had recently removed J.H. from
the Youngs' care. The Youngs argued that it was in
J.H.'s best interests that the trial court award them
custody of J.H. The Youngs requested that the court (1) award
the Youngs the "primary care, control and education of
[J.H.]" and (2) adjudicate parenting time between the
Youngs and Kourtney.
6 Two days later, the Youngs filed a petition for an
emergency order of protection, requesting that J.H. be
returned to their care. Shortly thereafter, the trial court
entered an emergency order of protection, ordering Kourtney
to return J.H. to the physical care of the Youngs. The court
later modified the emergency order to allow Kourtney
visitation time with J.H. twice a week. (The emergency order
of protection was subsequently extended several times by the
7 B. Kourtney's Motion to Dismiss
8 In June 2016, Kourtney filed a combined motion to dismiss
the Youngs' petition to establish custody under section
2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
619.1 (West 2016)).
9 Kourtney argued that the Youngs' petition should be
dismissed under section 2- 615 of the Code (id.
§ 2-615) because the petition failed to state a cause of
action upon which relief could be granted. Kourtney argued
that a nonparent could file a petition for custody only if
the child in question was not in the "physical
custody" of either of the child's parents. 750 ILCS
5/601(b)(2) (West 2014). Kourtney reasoned that, when the
Youngs filed their petition, J.H. was in Kourtney's
custody and, therefore, the Youngs' petition failed to
state a cause of action.
10 Kourtney argued further that the Youngs' petition
should be dismissed pursuant to section 2-619(a)(9) of the
Code (735 ILCS 5/2-619(a)(9) (West 2016)) because the claim
was barred by other affirmative matter. Specifically,
Kourtney argued that the Youngs lacked standing to bring
their claim because J.H. was in the physical custody of
Kourtney when the Youngs filed their petition.
11 The trial court declined to immediately rule on the motion
to dismiss and, instead, scheduled a trial, after which the
court would decide both the motion to dismiss and
12 C. The Guardian Ad Litem Report
13 In July 2016, the guardian ad litem, Helen Ogar,
filed a report containing her observations and
recommendations concerning J.H. Ogar observed J.H. in
Kourtney's home and in the Youngs' home. Ogar stated
that both homes showed J.H. a lot of love. When Ogar asked
J.H. how much time she spent at each home, J.H. was unable to
answer because she did not see a distinction between the two
homes. J.H. considered her different family members "one
big family." Ogar could not determine whose custody J.H.
had been in, as Ogar learned that J.H. spent considerable
time with both parties.
14 Ogar recommended that both Kourtney and the Youngs be
involved in J.H.'s life. The Youngs provided a
"stability" that J.H. otherwise lacked. Ogar
recommended that decision- making should be split evenly
between Kourtney and the Youngs, who had been contributing to
15 D. Evidentiary Hearings in July, August, September, and
16 In July, August, September, and October 2016, the trial
court conducted six evidentiary hearings to resolve
Kourtney's motion to dismiss and the Youngs' petition
to establish custody. The following pertinent evidence was
presented at those hearings.
17 Autymne Huerta testified that she lived in the same
apartment complex as Kourtney and J.H. from August 2011
through July 2015. During that time, Huerta saw Kourtney
bring J.H. to the bus stop every morning. Every time Huerta
saw Kourtney, J.H. was with her. However, Huerta also
testified that she occasionally saw Crystal dropping off J.H.
and picking her up from the school bus.
18 Derek Riebe testified that he was Kourtney's next-door
neighbor from 2010 to 2014. During that time he saw J.H. with
Kourtney nearly every day. J.H. and Riebe's daughter
played together almost every day after school. Riebe saw
Crystal picking J.H. up from school and dropping her off at
the bus stop, which he believed she did every day. On most of
the occasions when Riebe saw J.H., she was with Kourtney, but
the Youngs "were very active grandparents." Riebe
believed that Kourtney's mom and sister lived in the
apartment with her and J.H. Riebe assumed he saw Crystal more
than Kourtney because Crystal was J.H.'s ride to and from
19 Crystal testified that she lived with her husband,
Michael, and her granddaughter, J.H., who was the daughter of
Crystal's son, David Herron, who was no longer involved
in the child's life. In December 2006, David told Crystal
that Kourtney had given birth to his child, J.H. That month,
Crystal visited Kourtney's home between three and six
times. In January 2007, Kourtney agreed to have parentage
testing conducted, which showed that David was J.H.'s
20 Crystal testified further that beginning in February 2007,
Kourtney allowed J.H. to spend the night at Crystal's
home anywhere from two to four times per week. Meanwhile,
Crystal was supplying J.H. with necessities such as diapers,
clothing, and milk. In March or April 2007, after Kourtney
had a disagreement with David, she told Crystal that she
wanted nothing to do with David and asked Crystal to coparent
J.H. with her. From that time until mid-2008, J.H. spent four
nights a week at Crystal's home and three nights at
Kourtney's. From mid-2008 through October 2015, J.H.
spent five or six nights a week at Crystal's home.
21 Crystal testified further that it was her idea for J.H. to
attend preschool, starting when J.H. was 18 months old, which
Crystal arranged and paid for. Kourtney accompanied Crystal
to appointments with different learning centers during the
selection process. Crystal arranged for J.H. to have her
first immunizations so that she could start preschool. After
preschool started, Crystal took J.H. to and from preschool
and bought her supplies. In addition, Crystal located
tutoring programs and extracurricular activities for J.H.
Crystal scheduled almost all of J.H.'s medical
appointments, which both Kourtney and Crystal attended. From
2007 to 2015, Crystal provided Kourtney with transportation
because Kourtney's driver's license was revoked, and
Crystal also paid some of Kourtney's bills. Crystal also
took J.H. on several trips and regularly took her to church.
Crystal was concerned because Kourtney smoked cigarettes in
her home and sometimes drank alcohol in excess.
22 Crystal also testified that one afternoon in October 2015,
she and Kourtney had a confrontation while waiting for J.H.
at the bus stop. Kourtney approached Crystal's car and
threatened to physically hurt Crystal because she was
"so messy." When the bus dropped off J.H., Kourtney
told Crystal that she would never see J.H. again. Kourtney
stood nose-to-nose with Crystal and called her profane names.
Crystal responded by using a profane insult toward Kourtney.
Kourtney took J.H. to Kourtney's home and allowed Crystal
only minimal contact with her since.
23 Henry Guenther testified that he had been the Youngs'
next-door neighbor since 2010. Guenther frequently saw J.H.
at the Youngs' home. He could see the Youngs'
television playing cartoons almost every weekend. In
addition, Guenther worked in his yard between three and five
times a week and would notice J.H. playing outside.
24 Michael Young testified that from the time J.H. was a
baby, she spent four to five nights per week with the Youngs.
Michael was a physician and helped arrange J.H.'s medical
care. He and Crystal arranged and paid for J.H.'s day
care, preschool, extracurricular activities, and tutoring.
Every time Michael visited Kourtney's home, the windows
were shut, and the home "reeked" of cigarette
smoke. Once in 2011 and once in 2012, Michael received a call
from J.H. stating that Kourtney was asleep and would not wake
up. When Michael went to Kourtney's home to investigate,
he discovered that Kourtney was intoxicated.
25 Kourtney testified that her driver's license was
suspended after a January 2006 conviction for driving under
the influence of alcohol. Kourtney testified that at the time
of her testimony, her license remained suspended. Kourtney
did not work from 2006 through 2013. Since 2013 she has
worked as a certified nursing assistant for Aperion Care.
Kourtney stated that she planned to move to Florida but that
nothing was "set in stone" ...