The Baby Richard case brought to the forefront the issue of a child’s best interest versus the rights of the natural parent when deciding the custodial placement of children.
Judging from the public outcry, it would appear that the public views the best interest of the child as outweighing the rights of the natural parent.
While I do not want to revisit that case I believe that the public response may be reflected in the recent decision of In re Marriage of Brownfield, 283 Ill.App.3d 728 (4th Dist. 1996). That case seems to indicate that divorced spouses lose their rights as natural parents, as recognized by the superior rights doctrine, because they have submitted themselves and their children to the jurisdiction of the court. Losing that right means that the court looks to the best interest of the children when determining custodial issues while the children remain minors.
The issue of the natural parent’s superior rights in dissolution cases has arisen in those cases where the custodial parent has died and the non-custodial parent seeks the custody of the children. The question becomes whether a non-parent has the standing to contest the superior rights of the natural parent.
Illinois recognizes the superior rights doctrine which creates the presumption that the right of a natural parent in the custody of their child is superior to the claim of a third person. In re Custody of Peterson, 112 Il1.2d 48 (1986). This was particularly demonstrated in the Baby Richard case where the rights of the natural father were enforced without considering the best interests of the child. In re Petition of Kirchner, 164 Il1.2d 468 (1995).
However, the death of a divorced natural parent does not automatically revert custody of the children to the custody of the surviving natural parent. Milenkovic v. Milenkovic, 93 Ill.App.3d 204 (1981). When a custodial parent dies custody is in no one. Id. The reasoning is that the court has previously made a custody determination and when that custodial parent dies no one has custody of the child pursuant to an order of court which maintains jurisdiction. Id.
Therefore, the surviving natural parent must seek a modification of the custody order pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) to obtain the custody of the children. In re Marriage of Carey, 188 Ill.App.3d 1040 (2nd Dist. 1989) A non-parent who seeks custody would do so pursuant to section 601 of the IMDMA; "(b) A child custody proceeding is commenced in the Court (2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents." 750 ILCS5/601(b)
Before a non-parent can proceed on their petition for custody and litigate the issue of best interest they must be able to demonstrate that they have standing to proceed. Standing is established by proving that the natural parent has relinquished physical custody of the minor child. In re Custody of Peterson, 112 Il1.2d 48 (1986). This standing requirement of the statute recognizes the superior rights of a natural parent to the custody of their children. Id.
In Peterson the natural mother, who had been granted custody after a contested trial with a finding that both parents were fit and proper to have custody, lived with the minor daughter at her parent’s (the grandparent’s) home. The grandparents provided care for the minor child while the natural mother lived with them. The natural father, who lived on the same block, regularly exercised visitation. Upon the death of the natural mother the grandparents sought custody of the child, but the Illinois Supreme Court ruled that they did not have standing. Id.
Peterson established that if the non-custodial parent was not found to be unfit at the time of the divorce, had regularly exercised visitation, and had demonstrated an interest in the child then there would not be a relinquishment of the physical custody of the children by the surviving natural parent. In re Custody of Peterson, 112 Il1.2d 48 at 54. Therefore, upon the death of the custodial parent the non-custodial parent would have the constructive physical custody of the children and the non-parent would not have standing to proceed on a petition for custody. In re Marriage of Gustaison, 181 Ill.App.3d 472, 481 (4th Dist. 1989).
Peterson also established the important rule that physical custody is not equivalent to physical possession. A parent who lacks physical possession of the child has not necessarily relinquished physical custody. In re Marriage of Brownfield, 283 Ill.App.3d 728 (4th Dist. 1996). Likewise, a party who happens to have possession of the child does not necessarily obtain standing to seek custody of the child. Id. Possession, in and of itself, is not a determinative factor because otherwise there would be an incentive for snatching children in order to obtain possession and therefore acquire standing to seek custody. In re Custody of Peterson, 112 Il1.2d 48 (1986).
There have been two cases since Peterson which appear to undercut the concept that a natural parent has superior rights to his children. Those cases are In re Marriage of Carey, 188 Ill.App.3d 1040 (2nd. Dist. 1989) and In re Marriage of Brownfield, 283 Ill.App.3d 728 (4th Dist. 1996).
In Carey the parties had entered into a marital settlement agreement giving custody to the father (the parties’ agreement was viewed as a distinguishing factor from Peterson.). Subsequently, the parties entered an agreed order allowing the father to remove the minor son to Washington, D.C. with his new wife and leaving one of the minor children with the natural mother in Illinois. The natural mother did exercise visitation with the minor son in Washington, D.C.
Several years later the father died and a custody battle ensued between the natural mother and the stepmother over the custody of the minor son.
The court found that the stepmother had standing to pursue a petition for custody despite the fact that the natural mother had not been previously found to be unfit and that she had exercised visitation. In re Marriage of Carey, 188 Ill.App.3d at 1050. The court found that the stepmother had the physical custody of the minor son because she had provided for the care, custody, and welfare of the minor son. In re Marriage of Carey, 188 Ill.App.3d at 1049. Further, the natural mother had voluntarily relinquished legal custody as evidenced by the marital settlement agreement giving custody to the father, and the agreed order allowing the father to remove the child from the State of Illinois with his new wife. Id.
The appellate court was not unanimous in its decision. The dissent wrote that the court’s consideration of the agreements of the parties relative to custody was not conducive to promoting amicable resolutions of custody cases. The dissent did not agree that the case was distinguishable from Peterson merely because Peterson had involved a contested custody trial.
The recent case of Brownfield criticized Carey for relying upon the agreements of the parties as evidence of relinquishing the legal custody of the children.
In Brownfield, as in Carey, the parties had entered into a marital settlement agreement where each party was granted the custody of one child. Eight years later the wife entered an agreed order transferring custody of one child to her former husband. The husband remarried two years later and then died four years from the date of his second marriage.
The stepmother then filed a petition to intervene seeking custody of the minor children and was granted standing to do so. The court agreed with the dissent in Carey that an agreement of the parties relative to custody is not tantamount to an abandonment or loss of interest in the child by the parent. In re Marriage of Brownfield, 283 Ill.App.3d at 734. However, the court did write; "Nonetheless, while one parent’s agreement that the other receive custody should not be dispositive on the issue of voluntary relinquishment, such an agreement, and the reasons behind it, are factors which the court can properly consider." Id.
In determining whether there had been a voluntary relinquishment the court would consider other factors such as; "who was responsible for the care and welfare of the child prior to the initiation of the custody proceeding, the manner in which physical possession of a child was acquired, and the nature and duration of the possession." In re Marriage of Brownfield, 283 Ill.App.3d at 736.
The court also considered whether the surviving natural parent knew that the stepparent was bonding with the children and whether any steps were taken to increase contact. In re Marriage of Brownfield, 283 Ill.App.3d at 734.
The court found that the surviving parent had voluntarily relinquished custody because of the following factors; she had agreed to the custody arrangement; she was aware of a mother-child relationship developing between the stepmother and the minor child and did not seek to modify visitation, and visited infrequently. In addition, she had not maintained regular contact, and had failed to make regular child support payments. In re Marriage of Brownfield, 283 Ill.App.3d 738,739.
In a specially concurring opinion, Justice Cook stated that, to him, the stepparent should generally have standing. In re Marriage of Brownfield, 283 Ill.App.3d at 739. He also wrote that the mere fact that the natural parents had proceeded in the dissolution action demonstrates a voluntary relinquishment of the legal custody. Id.
Justice Cook’s statement appears to answer the criticism of Carey and the court’s consideration of whether custodial issues had been decided by agreement or by the court. There is no need to consider the agreement if the mere participation in a divorce proceeding is a voluntary relinquishment of the legal custody of the children. The issue then becomes the best interest of the minor child because the factors to be considered to establish standing, i.e. providing care and welfare for the child, nature and duration of the possession, are in essence the factors to be considered in a best interest hearing.
It, therefore, appears that the best interest of the child is the paramount issue, not the rights of the natural parent. While this may serve society’s interest it may also increase the amount of litigation.
An interesting question will be how this affects the new spouse of the noncustodial parent who dies. It would appear that if the new spouse was involved in the visitation and had bonded with the minor child he or she might now be able to establish some standing to proceed on visitation or custody issues since the issue will be the best interest of the child.
Neal W. Cerne is a Principal of Cerne & Boros, P.C., Wheaton. His practice is concentrated in Family Law. He received his Undergraduate Degree in 1983 from Northwestern University, his M.B.A. in 1985 from the University of Illinois, and his Law Degree in 1988 from Loyola University-Chicago.