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I. Facts

The facts of this case, as set forth in the record, are as follows. E.L. was born on July, 13, 1995. Her mother,Marisa R. (Marisa), is the only parent listed on the birth certificate. J.L., E.L.'s biological father, was present for her birth and was living in the same apartment building as Marisa at the time of E.L.'s birth. Upon returning from thehospital, Marisa and E.L. stayed with J.L. in his apartment for two to two-and-one-half months. Marisa then returnedto her own apartment. Although J.L. and Marisa continued to live in the same apartment building, they did notcontinually live in an apartment together again until 1996. J.L., however, continued to be involved in E.L.'s care priorto the time he and Marisa moved in together. Six months after her birth, E.L. was baptized. Marisa and J.L. were listedon the baptismal certificate as her mother and father. J.L.'s brother and sister were E.L.'s godparents. On June 19, 1996,when E.L. was almost a year old, a Cook County circuit court entered an agreed order of parentage and support namingJ.L. as E.L.'s father and ordering him to pay child support.

On May 28, 1997, two months prior to E.L.'s second birthday, J.L. and Marisa were married. AroundSeptember 1997, Marisa began to spend less and less time at home with J.L. and E.L. There was some testimony tosuggest that Marisa was the victim of a rape that same month. Shortly thereafter, Marisa left the marital home and E.L.and J.L. lived together in an apartment with J.L.'s sister. When J.L. was at work, various relatives would watch E.L.

Marisa returned to the marital home in mid-January of 1998, after promising J.L. that she would change bystopping her drug use and drinking and by devoting herself to the family. J.L. accompanied Marisa to an appointmentwith a psychiatrist. The psychiatrist made various recommendations but Marisa failed to follow up on them. On January15, 1998, Marisa requested that J.L. be allowed to stop child support payments due to the fact that she and J.L. werenow married. In February 1998, J.L. was hospitalized for five days with stress-related chest pains. Shortly after hereturned home, J.L. told Marisa that she had not changed her ways and was not welcome in the home. Marisa wantedto take E.L. with her and J.L. protested. Marisa left and returned with the police, who allowed Marisa to leave with E.L.

J.L. did not know where Marisa was staying. For a number of weeks after Marisa left, she would call andpromise to let him see E.L. but would never follow through on her promises. J.L. looked for E.L. in the parks and otherplaces he thought Marisa might take her but his search was unsuccessful.

J.L. testified that he also went to two different police stations seeking help in recovering E.L. Both times hewas told that because E.L. was with her mother, there was nothing the police could do. This was corroborated by thetestimony of Chicago police officer Ronald Magro. Officer Magro testified that in March 1998, J.L. came to the fourthdistrict police station and reported to him that his wife, who was on narcotics, had taken their daughter to Indiana againsthis will and that he was interested in regaining custody of his daughter. Because E.L. was with her mother, OfficerMagro did not have a basis to make out a report, but did refer J.L. to his brother-in-law, who was a Whiting, Indianapolice officer. Although J.L. later sought out Officer Magro's brother-in-law in Indiana, the officer was unable to helpdue to J.L.'s lack of specific information on Marisa's whereabouts.

Meanwhile, F. and P.A. (the A.'s), residents of Pompano Beach, Florida, were seeking to adopt a child. TheA.'s owned and operated a car repair and sales business and had been married since 1979. In 1996, friends from Illinoissuggested that they call Chicago lawyer Larry Raphael for help in adopting a child. They contacted Raphael and paidhim $3000 to place ads on their behalf seeking a child to adopt.

The record indicates that Raphael was suspended from the practice of law in Illinois in February 1997, anddisbarred in May 1997.

In March 1998, Raphael contacted the A.'s to tell them he had found a two-year-old girl who was available foradoption through an adoption agency called New Beginnings. Raphael told the A.'s that the child's mother was goingthrough a divorce and that the man she was married to was not the father of the child. On March 8, 1998, the A.'straveled to Chicago and met Raphael. Raphael informed them that the biological father, who was not a part of the child'slife, had given up his rights to the child and that the mother of the child wanted to meet them. Raphael brought Marisato the hotel room where the A.'s were staying. After an emotional meeting, Marisa left and Raphael then brought E.L.to the room. E.L., who was two-and-one-half years old at the time, stayed with the A.'s that night and has been in theirphysical custody from that day forward. E.L. was turned over to the A.'s with only the clothes she was wearing. Shedid not have any toys or other items familiar to her.

The next day, Raphael introduced the A.'s to his "associate," Louis Capozzoli, and told the A.'s that Capozzoliwould be handling the adoption for him. The A.'s appeared in court with Capozzoli that same day, March 9, 1998, tofile a petition to adopt, and then stayed in Illinois several additional days waiting for clearance to take E.L. out of state. Filed as part of the adoption proceeding, as required by statute, was an "Affidavit of Identification" executed by Marisain which she averred that E.L.'s biological father was a man named Theodore Perez-Gonzalez. The court grantedtemporary legal custody of E.L. to the A.'s through an interim order which also terminated the parental rights of Marisaand Perez-Gonzalez. While in Chicago, the A.'s paid approximately $5,000 in cash to Capozzoli and prepared a checkin the amount of $12,650 for an organization called Adoption Consulting Services. The A.'s wrote a check to Raphaelfor an additional $1,000 after returning to Florida. Checks given to Raphael and the check to Adoption ConsultingServices were all deposited into an account belonging to Raphael. The A.'s were never asked to make any payment toNew Beginnings, the agency handling the adoption. Both Rita Sankey, on behalf of New Beginnings, and the A.'s,signed affidavits filed with the court stating that $17,000 had been paid to New Beginnings.

At the end of March or beginning of April 1998, J.L. learned through Marisa's mother that E.L. had been putup for adoption. He saw Marisa briefly in April 1998. Although she then admitted she had placed E.L. for adoption,she did not provide J.L. with any further details regarding the adoption.

J.L. sought out legal help from various sources. He met with attorneys at two private law firms but did not havesufficient information or money to retain private representation. J.L. ran in to Marisa again. She suggested that theChicago Legal Clinic might be able to help him. At some point in mid-1998, Marisa returned to live with J.L. for a fewmonths. Veronique Baker, an attorney with the Chicago Legal Clinic, testified that J.L. came to the clinic office on June2, 1998, to keep an appointment Marisa had made for them on May 15, 1998. Persons who call the clinic to makeappointments are informed that no case can be taken if there is a domestic violence case pending against the client. During the course of Baker's interview with J.L., Marisa arrived. Baker, realizing that J.L.'s problems were the resultof actions taken by Marisa, denied Marisa access to her office because she did not want a conflict of interest to arise. The interview continued, and Baker asked J.L. for certain information regarding the adoption. J.L. went downstairs andoutside in an effort to obtain the information from Marisa. During the five minutes J.L. was gone, Baker, through heropen second floor window, could hear J.L. and Marisa conversing in normal tones outside. When J.L. returned, Marisahad given him the name of the adoption agency (New Beginnings), its address, Larry Raphael's name, and E.L.'s locationat the time (Pompano Beach, Florida). Baker then called New Beginnings and spoke with its director, Rita Sankey. Baker then informed J.L. that she had been told by Sankey that E.L.'s adoption had already been finalized. Shortlythereafter, the police arrived and arrested J.L. because Marisa had told them J.L. had assaulted her five or ten minutesearlier. Baker did not believe that any assault had taken place. When J.L. returned to Baker's office several weeks later,Baker explained to him that, pursuant to Legal Clinic policy, she would not be able to provide any representation to himnow that an order of protection had been entered against him. According to J.L., the charges against him were laterdropped.

Retired attorney William Dillon testified that he was working as a volunteer for the Legal Aid Bureau whenhe met with J.L. on July 6, 1998. J.L. explained that his wife Marisa had placed their daughter up for adoption withouthis consent. J.L. returned on July 29 with documents verifying his fatherhood, including a baptismal certificate. Onthat date, Dillon wrote a letter to New Beginnings and had J.L. sign it. In the letter, J.L. stated that he was E.L.'sbiological father, noted that he had been found to be her father in an order of parentage and support, inquired as to anypending adoption action concerning his daughter, stated that he would contest any adoption proceeding, and gave anaddress and phone number at which he could be served with notice in the event a proceeding were pending or were totake place in the future. The letter was apparently forwarded to Capozzoli who responded with a letter to Dillon. Inthe letter, Capozzoli stated that Marisa had informed New Beginnings that J.L. was not E.L.'s father and that J.L. hadbeen reported to DCFS for molesting E.L. Both of Marisa's statements were false. Capozzoli, in his letter, furtheradvised J.L. to "move on with his life." The letter did not mention the pending adoption proceeding or whom Capozzoliwas representing.

In September 1998, Capozzoli did a search of the Illinois putative father registry. Although he used the nameof Marisa L., Capozzoli searched using E.'s first name and the last name of the A.'s, the potential adoptive parents inFlorida, rather than E.L.'s legal last name at the time. The putative father was listed as Perez-Gonzales. Although J.L.had, on the advice of an attorney, registered with the registry in July 1998, Capozzoli's search failed to find a match. A previous search of the registry, instituted by New Beginnings in May 1998, in which E.L.'s legal name had been used,had also failed to reveal a match.

On October 8, 1998, the final judgment order of adoption was entered. Neither New Beginnings nor Capozzolihad informed the court or E.L.'s guardian ad litem of their contacts with J.L. The court, unaware of J.L., stated in itsorder that no orders had been previously entered in any court affecting the custody, adoption or parental rights of theA.'s to E.L.

On November 24, 1998, with the assistance of yet another attorney, J.L. filed a motion to examine and copythe court file from the adoption proceedings. The next day, the A.'s first learned that J.L. was claiming to be E.L.'sfather. On December 2, 1998, J.L. filed verified petitions pursuant to section 2-1401 of the Code of Civil Procedureto set aside the adoption based on lack of jurisdiction and based on fraud. After a paternity test proved that he was E.L.'sfather, J.L. moved for summary judgment on his petitions.

After hearing arguments, the circuit court held Marisa's surrender had been properly procured and that Marisahad a legal right to surrender E.L. to an agency for adoption. The court held that Marisa's false affidavit of identificationwhich identified Perez-Gonzalez as the biological father of E.L. had created a rebuttable presumption of truth as to thatassertion. The court found that although the actions of the A.'s attorney had been "improper," the actions did not "riseto the type of fraud sufficient to cause the adoption to be voided." The court held, however, that its failure to acquirepersonal jurisdiction over J.L. required it to vacate the judgment of adoption.

The court vacated only the judgment order of adoption, and denied all other relief sought by J.L. in his motionfor summary judgment. In so doing, the court let stand the interim custody order in favor of the A.'s that had beenentered previously pursuant to the initial adoption petition. The court found that because it had vacated the adoptionorder, it was bound by section 20 of the Adoption Act to hold a custody hearing regarding E.L.'s best interests. 750ILCS 50/20 (West 1998) (stating that "[i]n the event a judgment order for adoption is vacated or a petition for adoptionis denied, the court shall promptly conduct a hearing as to the temporary and permanent custody of the minor child whois the subject of the proceedings pursuant to Part VI of the Illinois Marriage and Dissolution of Marriage Act"). Because section 20 stated that the petitioners in an adoption proceeding were to be parties to such a hearing, the courtruled that the A.'s need not meet the standing requirements for participation in a custody determination set forth in PartVI of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). 750 ILCS 50/20 (West 1998); 750 ILCS 5/601et seq. (West 1998).

The court proceeded to hold a hearing as to E.L.'s temporary and permanent custody. It was acknowledgedduring the proceedings below that at the point the hearing commenced, J.L., as the biological father, had a presumptionin his favor and the burden was on the A.'s to show why the predominant rights of the biological father should beovercome and custody placed with them.

At the best interests custody hearing, there was voluminous testimony regarding E.L. and the parties in additionto the chronology set forth above.

Robin Ullman, an employee of Sun Coast International Adoptions, a Florida adoption agency, testified thatshe did a home study investigation of the A.'s in 1996 at their request. Such a study is required in the State of Floridain order to be approved as a potential adoptive parent. The A.'s were approved in 1996 and received updated approvalin 1998 after it became apparent that they may have an opportunity to adopt E.L. Ullman visited the A.'s on threeoccasions in the five months after E.L. came to live with them to observe their interactions and the bonding process. In August 1998, Ullman, based on her three post-placement observations of E.L. and the A.'s, recommended that theplacement with the A.'s continue and that they be approved for final adoption of E.L. Ullman, testifying as an expertin the field of social work, was of the opinion that the bonding and attachment processes between the A.'s and E.L. hadsuccessfully occurred and that the A.'s were providing a very healthy physical and emotional environment for E.L.

Michelle Kerrigan, the owner, operator, and pre-kindergarten teacher at a pre-school in Florida testified thatE.L. had been enrolled at the school since June 1998. When E.L. was first enrolled, she was withdrawn and appearedto lack social skills. Since that time, Kerrigan has observed E.L. develop into a very outgoing, happy, and well-adjustedchild who plays well with others.

Daniel Cain, a friend of the A.'s, testified that since arriving at the A.'s, E.L. had gone from withdrawn andtemperamental to affectionate and playful.

Joseph A., F.A.'s brother, testified that he visited the A.'s several weeks after they brought E.L. home and hadseen the A.'s and E.L. a number of times since. E.L. was very withdrawn the first time he met her but in subsequentvisits had become very outgoing, playful, warm, loving, and engaging.

P.A. testified regarding E.L.'s day-to-day life with the A.'s. She described how the A.'s had incorporated E.L.into their work life so that she only needed to be at daycare in the morning. P.A. first met J.L. when he came to Floridato take a DNA test on January 22, 1999.

F.A. testified that he recalled E.L. as being fairly withdrawn the first few days she was with the A.'s. F.A.testified that when they first arrived back in Florida with E.L., she had recurring fears of being left alone or abandoned,and would sometimes strike them and bite them. Over time she had opened up tremendously and had become muchmore well-behaved. According to F.A., the A.'s had always been open with E.L. about the fact that she was adopted. They had told her that she was very special and has two mommies and two daddies.

Ann Rothschild, an expert in the field of social work, testified that she had inspected J.L.'s apartment todetermine whether it would be an appropriate home if custody of E.L. was returned to J.L. She found J.L.'s apartmentto be an appropriate and adequate home in which to raise a child.

Alvia Rodriguez testified that J.L. was her nephew. She saw J.L., Marisa, and E.L., two or three times a weekfor the first two years of E.L.'s life. During this time, she observed that J.L. was doing most of the caretaking, such asfeeding E.L. and changing her diapers. Marisa made it clear that she did not want to be involved in caring for E.L. During the second year, Rodriguez observed that Marisa was increasingly rejecting E.L. and would use profanity towardher. During the fall of 1997 and into January 1998, Rodriguez watched E.L. each night while J.L. worked. Rodrigueznever saw Marisa feed E.L.

Evangelina L., J.L.'s sister, similarly testified that when E.L. was a baby and toddler, J.L. was her primarycaretaker and was a caring father. Evangelina also testified that Marisa was depressed, was unkind to E.L., was largelyuninvolved, and that E.L. was a happy baby and toddler.

J.L. testified to his extensive involvement with E.L.'s care during the first two-and-one-half years of her life. When E.L. was a newborn, he was the person who would regularly get up at night and feed her, change her diapers andsoothe her. J.L. admitted to past occasional use of cocaine and marijuana, but maintained that he had never used drugsaround E.L. J.L. testified that if the court determined custody should continue with the A.'s, he would be willing tomove to Florida to be near E.L. J.L. also testified that in the event he were granted full custody of E.L., he consideredthe A.'s to now be part of his family and he would thus encourage E.L. to have visits with them.

Andrea Corn testified as an expert witness for the A.'s. Dr. Corn stated that she had a doctor of psychologydegree. Dr. Corn was contacted by P.A. in April 1999. She subsequently met with the A.'s and E.L. at her office, atthe A.'s home, and observed E.L. at school. She testified that her observations had led her to believe that there was "avery warm intimate and a very secure and loving attachment" between the A.'s and E.L. Dr. Corn also testified that theA.'s were E.L.'s "psychological parents." Although Dr. Corn had not met either of E.L.'s biological parents, she did notfind that to be significant because based on what she had learned about E.L.'s behavior when she was first with the A.'s,Corn believed that she had an understanding of the kind of home life and early caregiving that E.L. probably received. Dr. Corn understood that when E.L. had come to the A.'s, she had a number of fears and anxieties, and had not beenoutwardly happy, playful or talkative. The above description suggested to Dr. Corn that E.L. had grown up without anattuned and emotionally responsive caregiver or caregivers. Dr. Corn was especially troubled that Marisa had apparentlytold E.L. that a monster resided under E.L.'s bed, resulting in an ongoing fear of her bed and the dark. Based on herobservations, Dr. Corn believed that the A.'s had established a "very secure, reliable, safe, consistent and loving homelife for E.L. and as a result of those conditions have greatly helped to ameliorate many of the behavioral problems that"the A.'s initially described to her regarding E.L.'s behavior when she was first placed with them. Dr. Corn testified that,in her professional opinion, if E.L. were removed from the A.'s home, the effect on E.L. would be "catastrophic,""overwhelmingly traumatic," and she would be at great risk for many psychological problems. Therefore, Dr. Cornbelieved that it was in E.L.'s best interests to remain with the A.'s.

On cross-examination, Dr. Corn testified that she did not observe J.L. with E.L. and could not recall whethershe had asked the A.'s if she could observe J.L. interact with E.L. Dr. Corn acknowledged that because she had notassessed J.L., there was no way she could recommend that custody of E.L. be returned to him. Dr. Corn did not reviewthe reports from Suncoast, the adoption agency that had approved the A.'s for adoption. Dr. Corn acknowledged thatif E.L.'s first primary attachment had been to J.L. and that attachment had been broken when Marisa took E.L. away,it was possible that E.L. would experience a level of regression that might explain some of E.L.'s problems and behaviorupon arriving at the A.'s.

Dr. Bennett Leventhal also testified as an expert witness. Dr. Leventhal testified that he was a physician, aprofessor of psychiatry and pediatrics, and was director of child and adolescent psychiatry at the University of Chicago. Dr. Leventhal was contacted by counsel for J.L. and was asked to do an evaluation of the parties and E.L. He consentedunder the conditions that he could evaluate on his own terms and that his principal focus would be the child. He testifiedthat he found both J.L. and the A.'s to be "terrific people." In forming his opinions in the case, he reviewed recordsprovided by J.L.'s attorney, reviewed psychological tests regarding J.L., and spent time over the course of a day withJ.L., the A.'s, and with the adults and E.L. Dr. Leventhal also consulted with colleagues who had also either reviewedthe psychological testing or observed the interactions of the parties.

Dr. Leventhal found that there was no question J.L. was a fit and capable parent and that J.L. had the primaryattachment, or base original psychological relationship, with E.L. He likened a strong primary attachment to the solidfoundation of a house, on which all other relationships in a child's life are built. Dr. Leventhal observed that watchingJ.L. and E.L. together was to witness the "magic of good parenting." Leventhal believed E.L. needed to maintain herstrong attachment to her father in order to develop appropriately. He therefore believed J.L. should be the starting pointas the primary parent for E.L. Although he believed it was in E.L.'s best interest that J.L. be her legal guardian, hebelieved the A.'s needed to play a permanent role in E.L.'s life and that the transition from her current living arrangementto whatever the next living arrangement will be had to be done with "an extraordinary amount of care and sensitivity."

Based on his discussions with the A.'s and review of the case, Dr. Leventhal believed E.L.'s behavioralproblems when she was first in the custody of the A.'s were due to "severe separation disorder, disruption of a solidattachment." He characterized the manner in which Marisa and the persons involved in facilitating the adoption hadhandled E.L.'s transfer as "abusive," "horrible," and "criminal." He further characterized the A.'s management of E.L.'sproblems upon arriving with them as "brilliant."

In his review of the evidence and Dr. Corn's testimony, Dr. Leventhal saw no basis for Dr. Corn's conclusionthat E.L. would develop a borderline personality disorder if she were separated from the A.'s. Dr. Leventhal alsobelieved that Dr. Corn did not have the specific level of expertise needed to make an evaluation in a case of this nature. Dr. Leventhal testified that Dr. Corn's doctor of psychology degree required less rigorous and lengthy training thanobtaining a Ph.D. in psychology or becoming a psychiatrist.

On cross-examination, Dr. Leventhal acknowledged that his conclusion that J.L. be the primary parent to E.L.did not mean other scenarios, including having the A.'s as E.L.'s primary custodian and J.L. with secondary involvement,were not also acceptable. He continued:

"What we are talking about here is a very close call. There is no argument aboutit. That's why you are before the judge. This two-and-a-half years of a stablerelationship that clearly is an important relationship *** slides a psychologicaldecision somewhat, but not overwhelmingly, on the side of the primary attachmentfigure."

In his closing argument, E.L.'s guardian ad litem, stated it was his conclusion that E.L.'s best interests wouldbe served by a joint parenting agreement that would make J.L. her legal custodian but would permit her to remain in thephysical home and custody of the A.'s.

Dr. Leventhal, counsel for both parties, and the judge, all commented on the extraordinary manner in whichthe A.'s and J.L. had conducted themselves and expressed hope that the friendly relationship between the parties,centered on a love for E.L., would continue to grow. Both the A.'s and J.L. testified that they would want all partiesto continue to be involved with E.L. through visitation or other means.

After hearing the testimony, the court went through each factor it was required to consider in making a custodydetermination that is in the best interests of the child pursuant to section 602 of the IMDMA. 750 ILCS 5/602 (West1998). The court then held that the best interests of E.L. required an award of joint custody. The court awarded legalcustody and guardianship to J.L. after finding that "absolutely there has been no evidence to impact his primary rightto be the father of this child." The court further directed that physical custody of E.L. was to remain with the A.'s andthat J.L., after establishing residency in Florida, was to have visitation with E.L.

When the parties next came before the trial court, they had been unable to agree on the parameters of the jointparenting agreement. The court, unwilling to wait any longer, entered a joint parenting order. The order made J.L.E.L.'s legal custodian and directed that E.L. would continue to reside with the A.'s. The order directed that, after aperiod of transition and provided J.L. moved to Florida, E.L. would spend most weekends, various holidays, and eightweeks over the summer visiting with J.L.

J.L. now appeals.