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The respondents, Linda Patterson and Mitch Patterson, appealfrom the September 23, 1999, order of the circuit court of Du PageCounty awarding sole custody of A.W.J. to the petitioner, JeanTawrel. On appeal, the Pattersons argue that (1) Tawrel lackedstanding to seek custody of A.W.J.; (2) the trial court erred infailing to treat the instant proceeding as a request to modifycustody; and (3) the trial court's ruling awarding custody toTawrel was against the manifest weight of the evidence. The lattertwo arguments are disposed of in the nonpublished portion of thisopinion.

The facts relevant to the disposition of this appeal are asfollows. A.W.J. was born on August 13, 1995, to Aileen Tawrel and Richard J. Aileen Tawrel and Richard J. were never married,although they lived together with A.W.J. until July 21, 1996. Onthat date, Richard J. was alleged to have murdered Aileen Tawrel. Richard J. was subsequently convicted of first-degree murder andsentenced to 40 years' imprisonment. Jean Tawrel is A.W.J.'smaternal grandmother, and Linda Patterson is A.W.J.'s paternalgrandmother. Linda Patterson is presently married to MitchPatterson. Mitch Patterson is Linda Patterson's second husband andis not a blood relative of A.W.J.

Immediately following Aileen Tawrel's death, Richard J. tookA.W.J. to the home of his grandmother, Ruth Tovella. On July 23,1996, Jean Tawrel went to Tovella's home and took A.W.J. On July30, 1996, Tawrel filed a petition for guardianship of A.W.J.pursuant to the provisions of the Probate Act of 1975 (the ProbateAct) (755 ILCS 5/11--5 (West 1996)).

On August 9, 1996, while incarcerated at the Du Page Countyjail, Richard J. executed a document that appointed his mother,Linda Patterson, as short-term guardian of A.W.J. for a period of60 days pursuant to section 11--5.4 of the Probate Act (755 ILCS5/11--5.4 (West 1996)).

On August 16, 1996, the trial court entered an orderdismissing Tawrel's petition for guardianship for lack of subjectmatter jurisdiction. See 755 ILCS 5/11--5(b) (West 1996). Although there is no transcript from this proceeding, it appearsthat the trial court concluded that Jean Tawrel lacked standingunder the Probate Act to seek guardianship because Richard J.'sparental rights to A.W.J. had not been terminated and because hehad already appointed Linda Patterson to act as guardian. Following the trial court's ruling, A.W.J. was placed in thephysical custody of Linda and Mitch Patterson.

A.W.J. continued to reside with Linda and Mitch Patterson inthe months that followed. On October 8, 1996, Richard J. executeda second short-term guardian appointment, again appointing LindaPatterson as A.W.J.'s guardian for the next 60 days.

On November 19, 1996, Tawrel filed a petition seeking custodyof A.W.J. pursuant to section 601(b) of the Illinois Marriage andDissolution of Marriage Act (the Act) (750 ILCS 5/601(b) (West1996)). Linda Patterson, Mitch Patterson, and Richard J. werenamed as respondents in the proceeding. The petition alleged thatit was in A.W.J.'s best interests to be placed in both thetemporary and permanent physical possession and custody of Tawrel. The petition also requested that Tawrel be awarded immediateunrestricted visitation with A.W.J. and that trial court enter avisitation schedule. The petition also sought the appointment ofa guardian ad litem (GAL) to represent A.W.J.'s interests in theproceedings.

In addition to her request for custody of A.W.J., Tawrel'spetition requested additional relief under the Juvenile Court Actof 1987 (Juvenile Court Act) (705 ILCS 405/1--1 et seq. (West1996)) and the Adoption Act (750 ILCS 50/0.01 et seq. (West 1996)). Specifically, Tawrel requested that (1) A.W.J. be adjudicatedneglected and made a ward of the court; (2) that she be appointedguardian of A.W.J.; (3) that Richard J.'s parental rights to A.W.J.be terminated; and (4) that she be permitted to adopt A.W.J.

Following the filing of the petition, the trial court orderedthat Tawrel be permitted to have visitation with A.W.J. three timesa week. The trial court ordered that visitation would occur onTuesdays and Thursdays from 4:30 p.m to 8:30 p.m. and on Saturdaysfrom 10 a.m. to 5:30 p.m.

On December 16, 1996, the Pattersons filed various motionsseeking to dismiss the petition. The Pattersons argued that Tawrelwas without standing to bring a petition for custody becausesection 601(b) of the Act permits a nonparent to initiate a custodyproceeding only if the child is "not in the physical custody of oneof his parents" (750 ILCS 5/601(b)(2) (West 1996)). The Pattersonsargued that, although incarcerated, Richard J. still retained legalcustody of A.W.J. and had placed him in the physical custody andguardianship of Linda Patterson. The Pattersons argued that,without physical custody of the child, Tawrel lacked standing toseek custody.

The Pattersons also challenged the sufficiency of thepetition's allegations seeking the termination of Richard J.'sparental rights to A.W.J., the appointment of Tawrel as guardian,and Tawrel's request to adopt A.W.J. The Pattersons argued thatthe petition failed to allege facts demonstrating that A.W.J. hadbeen abused or neglected by Richard J. or that he was otherwiseunfit to be a parent. The Pattersons also argued that the petitionfailed to alleged facts demonstrating that A.W.J.'s present homeenvironment was injurious to his welfare.

In response, Tawrel argued that section 601(b) of the Act didnot require that she have physical custody of A.W.J. in order tohave standing to file a petition for custody. Rather, she arguedthat all the statute requires for a nonparent to have standing isthat the minor child not be in the physical custody of one of hisparents. Tawrel argued that, by virtue of his incarceration,Richard J. did not have physical or legal custody of A.W.J. and wasunable to fulfill his role as A.W.J.'s custodian. Additionally,Jean Tawrel argued that her allegations under the Juvenile CourtAct and the Adoption Act were legally sufficient to withstanddismissal.

On January 8, 1997, following argument of counsel, the trialcourt denied the Pattersons' motion to dismiss that portion of thepetition seeking custody of A.W.J. In so ruling, the trial courtfound that Tawrel had standing to initiate a custody proceedingpursuant to section 601(b) of the Act. The trial court also deniedthe Pattersons' motion to dismiss that portion of the petitionseeking relief under the Juvenile Court Act and the Adoption Act. However, as to these latter allegations, the trial court indicatedthat it would stay the proceedings "to wait for the State'sAttorney to decide whether or not they will proceed on the JuvenileCourt case." The trial court also appointed Brigid Duffield to actas GAL for A.W.J. during the entirety of the proceedings.

On March 19, 1997, the Pattersons filed a counterpetition forcustody pursuant to section 601(b) of the Act. In their petition,the Pattersons alleged that A.W.J. was not in the physicalpossession of his natural father and that the natural father hadvoluntarily relinquished custody to Linda and Mitch Patterson. Thepetition alleged that A.W.J. had been in the Pattersons' custodysince July 1996 and that it was in the best interests of A.W.J. toremain with them.

On June 26, 1998, on Tawrel's motion, the trial court modifiedthe visitation schedule to allow A.W.J. to have overnight visitswith Tawrel once a week and every other weekend.

On April 14, 1999, Tawrel filed a petition to terminate anyvisitation between Richard J. and A.W.J. In the petition, Tawrelalleged that Linda and Mitch Patterson had been taking A.W.J. tothe state penitentiary for weekly visits with Richard J. Tawrelfurther alleged that both the court-appointed psychologist, Dr.Demetri Dres, and the GAL, Brigid Duffield, had recommended thatA.W.J. not be taken to prison to visit Richard J. On April 15,1999, the trial court granted the petition and ordered that allvisitation between A.W.J. and Richard J. be temporarily suspendeduntil further order of court.

On May 20, 1999, Richard J. filed a petition seekingvisitation with A.W.J. In the petition, Richard J. alleged that hehad been a primary caretaker of the child prior to hisincarceration. He alleged that, since the time of hisincarceration, he had enjoyed visitation with A.W.J. at least oncea week until the trial court's order temporarily suspending thosevisits. Richard J. asserted that he was a fit and proper person tohave visitation and that visitation was in A.W.J.'s best interests.

On May 24, 1999, the trial court held a trial on that portionof Tawrel's petition seeking custody of A.W.J. pursuant to section601(b) of the Act, as well as the Pattersons' counterpetition forcustody, and Richard J.'s petition for visitation.

[Nonpublishable material removed under Supreme Court Rule 23.]

On October 1, 1999, following the trial, the trial courtentered an order granting sole custody of A.W.J. to Tawrel. Inmaking its determination, the trial court primarily relied upon thefindings of the court-appointed psychologist, Dr. Dres, and therecommendations of the GAL, Brigid Duffield. The trial court alsofound the testimony of Jean Tawrel's Supreme Court Rule 215 (166Ill. 2d R. 215) expert, Dr. Kadi Sprengle, to be clear andconvincing. The trial court did not accord significant weight tothe testimony of the Pattersons' Rule 215 expert, Dr. RogerHatcher, finding that he was substantially impeached on cross-examination and by the testimony of the other experts.

In entering its findings, the trial court specifically notedthat each of the parties was in good mental health and reasonablygood physical health to care for A.W.J. The trial court also foundthat A.W.J. was equally well adjusted to both the Tawrel and thePatterson residences and the neighborhoods in which they lived. The court found no evidence of violence in either household andconcluded that it was not fair or appropriate to assign blame toLinda and Mitch Patterson for the death of Aileen.

The trial court awarded visitation to the Pattersons and toA.W.J.'s paternal grandfather, Richard J., Sr. The trial courtfound that it was not in the best interests of A.W.J. to havecontact with his father and ordered that all visitation andtelephone contact cease. The trial court reserved the issues ofthe termination of Richard J.'s parental rights and Tawrel'spetition for adoption for a later date. On October 14, 1999, thetrial court entered an order pursuant to Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)) finding that its ruling on the custody andvisitation issues was final and that there was no just reason fordelaying enforcement or appeal. The Pattersons subsequently fileda timely notice of appeal.

The Pattersons' first argument on appeal is that the trialcourt erred in denying their motion to dismiss that portion of Tawrel's petition seeking custody pursuant to section 601(b) of theAct. The Pattersons argue that a nonparent lacks standing to bringa petition for custody under section 601(b) when the naturalparent's rights have not been terminated and the natural parent hasdesignated another individual to act as guardian of the child. ThePattersons argue that, despite his incarceration, Richard J.retained both legal and physical custody of A.W.J. for purposes ofsection 601(b) and that Tawrel therefore was without standing topetition for custody.

The Pattersons' motion to dismiss the petition was broughtpursuant to section 2--619(a)(9) of the Code of Civil Procedure(735 ILCS 5/2--619 (a)(9) (West 1996)). Such a motion may begranted when the claim asserted is barred by some affirmativematter defeating the claim. Glisson v. City of Marion, 188 Ill. 2d211, 220 (1999). The assertion that a party lacks standing tobring an action is properly raised under section 2--619(a)(9). Glisson, 188 Ill. 2d at 220. Whether a party has standing topursue a custody petition under section 601(b) of the Act is aquestion of law and is reviewed de novo. In re Marriage of Siegel,271 Ill. App. 3d 540, 543-44 (1995). Accordingly, in reviewing thetrial court's ruling on a motion to dismiss for lack of standing,we do not give the trial court's judgment deference. Marriage ofSiegel, 271 Ill. App. 3d at 544.

Section 601(b)(2) of the Act allows a nonparent to petitionfor the custody of a child, but only if the child is not in thephysical custody of one of his parents. 750 ILCS 5/601(b)(2) (West1996). That statute provides, in relevant part:

"(b) A child custody proceeding is commenced in thecourt:

(2) by a person other than a parent, by filing apetition for custody of the child in the county in whichhe is permanently resident or found, but only if he isnot in the physical custody of one of his parents." 750ILCS 5/601(b)(2) (West 1996).

This statutory section creates a standing requirement thatnonparents must satisfy in order to commence a custody action. Inre Custody of Peterson, 112 Ill. 2d 48, 52-53 (1986). In order todo so, the nonparent must show that the natural parent hasrelinquished "physical custody" of the child within the meaning ofthe statute. In re Marriage of Rudsell, 291 Ill. App. 3d 626, 632(1997).

The determination that a parent does not have physical custodyof a child turns not on possession; rather, it requires a showingthat the parent somehow has voluntarily and indefinitelyrelinquished custody of the child. In re Petition of Kirchner, 164Ill. 2d 468, 491 (1995). However, not every voluntary turnover ofa child will deprive the parent of physical custody. Rather, thecourt must consider such factors as (1) who was responsible for thecare and welfare of the child prior to the initiation of custodyproceedings; (2) the manner in which physical possession of a childwas acquired; and (3) the nature and duration of the possession. Marriage of Rudsell, 291 Ill. App. 3d at 632.

Turning to the instant case, for Tawrel to establish standing,she was obligated to demonstrate that Richard J. had relinquishedphysical custody of A.W.J. As Richard J. was incarcerated at thetime that the petition was filed, there is no dispute that he didnot have physical possession of A.W.J. However, as noted above,the concept of "physical custody" for purposes of the statute doesnot turn on possession. The Pattersons argue that, althoughRichard J. was incarcerated, his parental rights had not beenterminated and that he exercised those rights by appointing LindaPatterson to act as short-term guardian. The Pattersons argue thatRichard J. still retains the ability to make decisions regardingthe welfare of A.W.J. and that he has not "volutarily andindefinitely" relinquished custody of the child. In response,Tawrel argues that Richard J.'s incarceration deprived him ofphysical custody of A.W.J. and rendered him unable to fulfill hisrole as A.W.J.'s custodian.

In Milenkovic v. Milenkovic, 93 Ill. App. 3d 204, 211-12(1981), the court noted that a nonparent has standing to file apetition for custody under section 601(b) of the Act when the onlyliving natural parent is incarcerated. In Milenkovic, as in theinstant case, the natural father was alleged to have murdered themother and was arrested and incarcerated. Milenkovic, 93 Ill. App.3d at 206. Following the incident, a neighbor filed a petition andwas awarded custody of the parents' two minor children pursuant tosection 601(b)(2) of the Act. Milenkovic, 93 Ill. App. 3d at 208. In ruling that the trial court had jurisdiction over the petition,the reviewing court noted that the children were not in thephysical custody of either parent when the petition was filed. Milenkovic, 93 Ill. App. 3d at 211. The court noted that "wherethe mother is dead and the father is in jail it is obvious thatneither parent has direct control over the children's care." Milenkovic, 93 Ill. App. 3d at 212.

Under different circumstances, in Naylor v. Kindred, 250 Ill.App. 3d 997 (1993), the court also concluded that an incarceratedparent could not retain physical custody of his child. In thatcase, the natural father filed a petition for change of custodyafter the natural mother left the state with the parties' threechildren and was subsequently incarcerated after being convicted offederal welfare fraud. Naylor, 250 Ill. App. 3d at 1000. Following her incarceration, the natural mother signed a statementgranting temporary guardianship of the children to her mother andher sister. Naylor, 250 Ill. App. 3d at 1000. After the trialcourt granted the father's petition to change custody, the naturalmother appealed, arguing that an incarcerated custodial parentshould remain the nominal custodian of the child and should be ableto designate a temporary custodian. Naylor, 250 Ill. App. 3d at1008.

The reviewing court rejected this argument, holding that it isimpossible for a parent to act as a child's custodian whenincarcerated. Naylor, 250 Ill. App. 3d at 1009. The reviewingcourt explained:

"[A]n incarcerated parent, much like a deceased parent, is nolonger able to care for, supervise, provide a home, preparefood, obtain medical treatment, or be involved in the dailylife of the child. In short, an incarcerated parent cannotfulfill the role of a physical custodian of the child. Although incarceration may not absolutely prevent a parentfrom fulfilling the role of the child's legal custodian, itdoes impair this ability. The parent is not readily availableto give advice or console the child, or to be an example. Further, the incarcerated parent is not readily available toconsent to medical treatment and decide other issues generallyreserved to legal custodians." Naylor, 250 Ill. App. 3d at1009.

Lacking any Illinois authority stating that an incarcerated parentcontinues to hold custody of his or her children, the Naylor courtheld that an incarcerated parent, by virtue of his or herincarceration, does not have physical custody of his or her children. Naylor, 250 Ill. App. 3d at 1009, 1014. The court notedthat the incarceration of the custodial parent is analogous to thedeath of the custodial parent, as in both instances the parent isno longer able to care for the child or perform other custodialduties. Naylor, 250 Ill. App. 3d at 1013.

We agree with the courts in Milenkovic and Naylor that it isnot possible for a parent who is incarcerated to act as thephysical custodian of his or her children. As noted in Naylor, anincarcerated parent cannot directly provide for the child's care orwelfare or participate in the child's everyday life. Although theparent's relinquishment of physical custody because of his or herincarceration might not be voluntary, we believe that it isnonetheless a relinquishment of custody for purposes of section601(b) of the Act. As a practical matter, the incarcerated parentcannot retain physical custody of his or her child, and the childmust be placed with another custodian. In instances where oneparent is incarcerated and the other parent has died, we believethat it is appropriate for a nonparent to seek custody undersection 601(b) of the Act and for the trial court to considerwhether placement with the nonparent is in the child's bestinterests. See Milenkovic, 93 Ill. App. 3d at 212.

As the Pattersons correctly note, incarceration does notnecessarily terminate a parent's legal custody of his or hernatural child. Naylor, 250 Ill. App. 3d at 1013. However, wedisagree with the Pattersons' conclusion that Tawrel did not havestanding to petition for custody under section 601(b) becauseRichard J. did not volutarily relinquish legal custody of A.W.J. The standing requirement contained in section 601(b) of the Actrefers to "physical custody" rather than "legal custody." Oursupreme court has never interpreted the term "physical custody" forpurposes of section 601(b) as being interchangeable with the term"legal custody." Rather, the supreme court has simply noted that,in certain situations, it is possible for a parent to retain"physical custody" of the child for purposes of section 601(b)without having actual physical possession. See Peterson, 112 Ill.2d at 54 (noncustodial father did not relinquish physical custodyof his child merely because child had resided with mother prior toher death).

Indeed, the term "legal custody" cannot be found in anystatutory section within the custody provisions of the Act. Parents have legal custody of their children by virtue of theirstatus as biological parents, and that status can only berelinquished through court order. See In re Custody of Roberts,107 Ill. App. 3d 913, 918 (1982). While a parent's conduct maygive a court reason to terminate legal custody, that conduct doesnot independently end the parent's rights. By its plain language,section 601(b) is to be used in those instances where custodialmodification would be in the children's best interests, even thougha court has not determined the parent or parents to be unfitpersons. If this were not the purpose of section 601(b), then itwould be merely duplicative of the Adoption Act (750 ILCS 50/0.01et seq. (West 1996)) and the Juvenile Court Act (705 ILCS 405/1--1et seq. (West 1996)).

We are aware of several Illinois cases requiring proof thatthe natural parent has relinquished "legal custody" in order for anonparent to have standing under the Act. See Marriage of Siegel,271, Ill. App. 3d at 542; In re Marriage of Dile, 248 Ill. App. 3d683, 686 (1993). However, we believe these decisions havemisinterpreted the supreme court's language in Peterson and are atodds with the plain language of the section 601(b). The majorityof courts interpreting section 601(b) have not required a showingthat the parent did not have legal custody in order for a nonparentto have standing. See Marriage of Rudsell, 291 Ill. App. 3d at633; In re Marriage of Brownfield, 283 Ill. App. 3d 728, 732-36(1996); In re Marriage of Thompson, 272 Ill. App. 3d 257, 261(1995). We therefore decline to follow Siegel and Dile and insteadhold that a nonparent must only show that the natural parent hasrelinquished physical custody in order to have standing undersection 601(b). See Milenkovic, 93 Ill. App. 3d at 211-12.

We also reject the Pattersons' argument that Richard J.'srepeated appointment of Linda Patterson to act as short-termguardian pursuant to section 11--5.4 of the Probate Act (755 ILCS5/11--5.4 (West 1996)) somehow deprived Tawrel of standing undersection 601(b) of the Act. Section ll--5.4 of the Probate Actprovides that a parent whose parental rights have not beenterminated may, without court approval, appoint a short-termguardian of his child for a period of 60 days. 755 ILCS 5/11--5.4(West 1996). We agree with Tawrel that a parent lacking "physicalcustody" for purposes of section 601(b) of the Act cannot divestthe trial court of its ability to hear a nonparent's petition forcustody merely by executing repeated short-term guardianshipappointments pursuant to the Probate Act. Such appointments do notchange the fact that the parent lacks physical custody of the minorchild. Here, although Richard J. executed short-term appointmentsin favor of Linda Patterson, he still lacked physical custody ofA.W.J. because of his incarceration. See Naylor, 250 Ill. App. 3dat 1009. Therefore, Tawrel had standing to bring the custodypetition under section 601(b). Furthermore, we are not aware ofany authority holding that such appointments are binding upon thetrial court in determining what custodial arrangement is in thebest interests of the minor.

Finally, we note that the other authorities relied upon by thePattersons are distinguishable from the instant case. See In reCustody of Cannon, 268 Ill. App. 3d 937 (1994); Hanson v. McGowan,197 Ill. App. 3d 708 (1990). In those cases, the courts found thatnonparents lacked standing to petition for custody under section601(b) of the Act because the natural parents were still consideredto have physical custody over their children even though they werenot in actual physical possession of the child. However, in thosecases there was no impediment that would have prevented the naturalparents from acting as the child's custodian. As already noted,because of his incarceration, it was impossible for Richard J. toact as physical custodian of A.W.J. See Naylor, 250 Ill. App. 3dat 1009; Milenkovic, 93 Ill. App. 3d at 212.

For all of these reasons, we conclude that Tawrel had standingto petition for the custody of A.W.J. under section 601(b) of theAct. We therefore do not believe that the trial court erred indenying the Pattersons' motion to dismiss that portion of Tawrel'spetition.

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For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed.

Affirmed.

INGLIS and GALASSO, JJ., concur.