In re Marriage of Brownfield
Case Date: 09/25/1996
Court: 4th District Appellate
Docket No: 4-95-0964
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT In Re: the Marriage of ) Appeal from MARC A. BROWNFIELD, ) Circuit Court of Petitioner, ) Champaign County and ) No. 89C575 JOAN M. MADRIGAL, f/k/a JOAN N. ) BROWNFIELD, ) Respondent-Appellant, ) and ) Honorable CYNTHIA A. BROWNFIELD, ) Harry E. Clem, Intervenor-Appellee. ) Judge Presiding. ________________________________________________________________ JUSTICE GARMAN delivered the opinion of the court: In January 1995, intervenor Cynthia Brownfield (Cindy), stepmother of two minor children, Shane and Tanya Brownfield (born April 10, 1985 and October 20, 1987, respectively) brought a petition for custody in the underlying dissolution action after the children's father, Marc Brownfield, died. The circuit court found Cindy had standing to seek custody and awarded custody of both children to Cindy. The children's natural mother, Joan Madrigal (f/k/a Joan Brownfield), appeals arguing the court erred in holding Cindy had standing to seek custody of the children under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601(b)(2) (West 1994)). We conclude that the children were not in Joan's physical custody when Cindy filed her petition for custody and, therefore, affirm the circuitcourt's judgment that Cindy had standing to seek custody under the Act. Petitioner Marc Brownfield and Joan were married on No- vember 29, 1981. Two children were born to the parties: a son, Shane, and a daughter, Tanya. The parties separated in April 1988 and, on May 19, 1989, the court entered a judgment of disso- lution of marriage. The judgment incorporated the marital set- tlement agreement of the parties which provided that Marc would receive custody of Shane and Joan would receive custody of Tanya, subject to liberal visitation by each party with the child not in his or her custody. In September 1989, Joan asked Marc to take custody of Tanya because Joan was experiencing physical difficulties and be- lieved it would be in Tanya's best interest to live with her father and brother. Thus, on September 28, 1989, pursuant to a stipulation by the parties, the court entered an order modifying the judgment order of dissolution, and awarding Marc the perma- nent care, custody and control of both children, subject to lib- eral rights of visitation with Joan. The court also ordered Joan to pay Marc $200 per month per child as child support, beginning in September 1989. Intervenor Cindy and her daughter Emily moved into Marc's home in June 1990. Marc and Cindy were married on April 1, 1991. Marc, Cindy, Emily, Shane, and Tanya resided together as a family from June 1990 until Marc's death from cancer on January 10, 1995. On January 10, 1995, Cindy filed a petition to inter- vene in the parties' dissolution action and a petition for tempo- rary and permanent custody of Shane and Tanya. That day, the court entered an order indicating Cindy's petition to intervene should be allowed and awarding her temporary emergency custody of the children. Joan filed her answer to Cindy's petition on Feb- ruary 2, 1995, in which she requested permanent custody of the children. Joan raised no affirmative defenses to Cindy's peti- tion for custody in her answer. On March 1, 1995, a hearing on temporary custody was held, at the conclusion of which the court awarded Cindy tempo- rary custody of the children and set the hearing on permanent custody for August 23, 1995. Then, on July 17, 1995, Joan filed a motion to dismiss Cindy's petition, asserting for the first time Cindy lacked standing to seek custody of the children under section 601(b)(2) of the Act. A hearing on the motion to dismiss was held on August 4, 1995, and, on August 17, 1995, the court denied the motion because it found the standing issue involved disputed issues of material fact which could not be resolved in a summary manner. A full evidentiary hearing took place on August 23 and 24, 1995, on the issues of standing and permanent custody. On September 7, 1995, the court entered its order, finding the evi- dence established that Cindy had standing to seek custody of the children and that, based on the evidence presented as to the children's best interests, the presumption in favor of Joan as custodial parent under the superior rights doctrine had been overcome. Thus, the court awarded the permanent care, custody and control of the children to Cindy, subject to Joan's visita- tion rights which are detailed in the order. Joan filed a motion to reconsider on September 20, 1995, asserting the court erred (1) in its determination of the standing issue, (2) in its best interests determination, and (3) in its determination the presumption in favor of Joan as to cus- tody of the children had been overcome. The court denied the motion to reconsider on November 9, 1995, and this appeal fol- lowed. As a threshold issue, Cindy argues Joan waived the issue of standing by not raising it either in a motion to dis- miss, filed before her answer, or in her answer. Joan filed her answer in February 1995 and a temporary custody hearing was held in March 1995, yet she did not raise the affirmative defense of standing until she filed her motion to dismiss in July 1995. Lack of standing is an affirmative defense to be raised within the time for pleading. 735 ILCS 5/2-619(a)(9) (West 1994). However, the trial court has discretion to allow parties to file late pleadings and may do so unless it can be demonstrat- ed the opposing party would be prejudiced by the late filing. In re Custody of McCarthy, 157 Ill. App. 3d 377, 380-81, 510 N.E.2d 555, 557 (1987). The record does not strongly suggest Cindy was prej- udiced by the late presentation of the standing issue. The scope of inquiry is very broad at a best interests hearing and the facts brought out at such a hearing are frequently also relevant to the determination of standing. Because the court ruled on the motion to dismiss only after a full evidentiary hearing, at which Cindy was able to present substantial evidence on the standing issue, we conclude the court did not abuse its discretion in allowing Joan to raise the affirmative defense in her motion to dismiss filed July 17, 1995. We next address the substance of Joan's contention that the circuit court erred in finding Cindy had standing to seek custody of the children under the Act. Section 601(b)(2) of the Act sets forth: (b) A child custody proceeding is com- menced 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." (Emphasis added.) 750 ILCS 5/601(b)(2) (West 1994). The superior right of a natural parent to custody of his or her child is recognized and protected in the Act by requiring a non- parent seeking custody to meet the standing requirement embodied in section 601(b)(2) of the Act before being considered for cus- tody under the best interests standard set forth in section 602 of the Act (750 ILCS 5/602 (West 1994)). In re Petition of Kirchner, 164 Ill. 2d 468, 491, 649 N.E.2d 324, 335 (1995). To establish standing, a nonparent must show a child is "not in the physical custody of one of his parents" before she can seek cus- tody of the child. 750 ILCS 5/601(b)(2) (West 1994); see also Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335; In re Custody of Barokas, 109 Ill. App. 3d 536, 541, 440 N.E.2d 1036, 1040 (1982). Courts have consistently rejected the argument that physical possession equals physical custody; the term physical custody encompasses the legal right to the care, physical posses- sion, and control of a child. Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335; see also In re Custody of Peterson, 112 Ill. 2d 48, 53-54, 491 N.E.2d 1150, 1152-53 (1986). Joan presents two arguments in support of her position that Cindy lacks standing under section 601(b)(2) of the Act. First, she asserts that under Peterson and its progeny, upon the death of Marc, she was vested with constructive physical custody of the children. See In re Marriage of Gustafson, 181 Ill. App. 3d 472, 536 N.E.2d 1359 (1989). Joan's second argument is that in determining whether she voluntarily relinquished custody of the children, the court should look at her actions after the death of Marc, not before. In the dissolution action in Peterson, both parents sought custody of the child and both were found fit to have cus- tody, yet the trial court awarded the mother custody, subject to the father's liberal rights of visitation. Peterson, 112 Ill. 2d at 51, 491 N.E.2d at 1151. The child and her mother lived with the mother's parents, who assisted the mother in caring for the child, due to the mother's illness. The father lived on the same block as the child and mother and regularly exercised his visita- tion rights. When the mother eventually died of her illness, the grandparents would not release the child to her father, and he petitioned for custody under the Act. The grandparents asserted a claim to custody, which the father immediately contested, arguing that under section 601(b)(2) of the Act, the grandparents did not have standing to seek custody of his child. The supreme court agreed, holding that the grandparents did not have standing merely because they were in physical possession of the child when the petition for custody was filed. The court reasoned that as the mother had been in constant physical custody of the child and the father had reasonably exercised his rights of visitation, the father gained physical custody upon the mother's death, thus barring the grand- parents from having standing to seek custody. Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153. Although under Illinois law, a noncustodial parent is not automatically vested with custody upon the death of the cus- todial parent (Milenkovic v. Milenkovic, 93 Ill. App. 3d 204, 212, 416 N.E.2d 1140, 1145 (1981); McCarthy, 157 Ill. App. 3d at 383, 510 N.E.2d at 558; see also Mackie v. Mackie, 88 Ill. App. 2d 61, 67, 232 N.E.2d 184, 188 (1967)), Peterson established that when the noncustodial parent has not been found unfit, and has regularly exercised visitation and demonstrated interest in the child, it is proper that he be vested with custody upon the death of the custodial parent. Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153. In Gustafson, relied upon by Joan, this court noted that immediately following the death of the custodial parent, legal custody of a child is not in anyone, since the death of a custodial parent does not automatically revert custody to the surviving parent. Gustafson, 181 Ill. App. 3d at 477, 536 N.E.2d at 1361-62. The Gustafson court commented on the trial court's role in modifying custody orders, stating "[w]e note the validity of the trial court's suggestion when it emphasized the importance of the dissolution court's sole jurisdiction to change physical custody." Gustafson, 181 Ill. App. 3d at 479, 536 N.E.2d at 1362. However, consistent with Peterson, the court held that a parent determined fit, who had maintained reasonable visitation and interest in his child, should not be required to litigate the issue of custody at a best interests hearing and, therefore, was vested with custody following the custodial parent's abandonment of the children. Gustafson, 181 Ill. App. 3d at 479, 536 N.E.2d at 1363. The present case is distinguishable from Peterson and Gustafson in several respects. First, in Peterson, the custody arrangement was determined by the court, rather than by agreement of the parties, as is the case here. We agree with the statement by Justice Dunn in his dissent in In re Marriage of Carey, 188 Ill. App. 3d 1040, 1053, 544 N.E.2d 1293, 1301 (1989) (Dunn, J., dissenting), that an agreement by one spouse that the other spouse have custody of their child is not tantamount to an aban- donment or loss of interest in the child. 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. Another factor courts look to when a parent allows someone else to maintain physical possession of his/her child is that parent's intentions and expectations when relinquishing the child to the care of another. See Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153; Carey, 188 Ill. App. 3d at 1049, 544 N.E.2d at 1298; Montgomery v. Roudez, 156 Ill. App. 3d 262, 509 N.E.2d 499 (1987). One point the court found significant in Peterson was that in the time the child lived with her mother and grand- parents, it would not have occurred to the natural father that the grandparents were developing a position of standing by living with the child. Here, Joan was aware of Marc's and Cindy's relationship and knew that a mother-child relationship was developing between Cindy and the children over the years. Yet, even knowing that strong bonds were forming between Cindy and the children, Joan chose to live in distant states, visited with the children infre- quently, and never attempted to have a court modify her custody arrangement with Marc. In relinquishing physical possession of the children indefinitely and maintaining only an attenuated relationship with them while they were being reared by Marc and Cindy, Joan must reasonably have expected that parent-child rela- tionships were developing between Cindy and the children. This is in contrast with Peterson, where the court found there was no evidence a parental relationship had developed between the child and her grandparents. See Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153. Even if we do not give significant weight to Joan's custody agreement with Marc or her expectations as to the kind of relationships that would result therefrom, there is substantial additional evidence indicating that she voluntarily relinquished custody of the children, which brings us to the most significant difference between Peterson and the present case. In Peterson, the court found it extremely significant that the father had vigorously, regularly exercised his visita- tion rights. Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153. In the present case, the evidence demonstrated that from Septem- ber 1989 until after Marc's death in 1995, Joan visited with the children only four times; specifically, in the summer of 1990, the winter and summer of 1991, and the summer of 1992. After the visit in the summer of 1992, Joan did not again visit with the children until March 1995, when she traveled to Illinois for the hearing on temporary custody. Joan did not contact Marc to re- quest any visitation with the children in 1994. This is despite the fact that she had been granted liberal visitation rights and Marc and Cindy had been cooperative in arranging visits in the past. We agree with the trial court's conclusion that Marc and Cindy did not impede Joan in developing a relationship with the children, as she has contended. Not only did Joan fail to exercise visitation regular- ly, she also failed to maintain regular correspondence or tele- phone contact with the children. At the hearing, she admitted that she did not telephone the children or write to them monthly, or even bimonthly. One fact which is indicative of the infre- quency of contact between Joan and the children is that Joan at- tempted to send a package to Tanya for her birthday in September 1994, only to discover Marc, Cindy, and the children had moved to a new house four months earlier in June 1994. As Justice Green observed in his special concurrence in Gustafson, if a noncustodial parent continually shows interest in a child and promptly seeks custody upon the death of the custodi- al parent, courts will imply a constructive physical custody in favor of the noncustodial parent. Gustafson, 181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring); see Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153. Here, however, the evidence demonstrated Joan failed to maintain the kind of active and ongoing contact with the children as contemplated in Peterson. In addition to the specific rules the courts have fash- ioned for custody situations where the custodial parent has died or manifestly abandoned a child, the courts have indicated sever- al factors which should be considered in making the determination of whether a child is "not in the physical custody of one of his parents." 750 ILCS 5/601(b)(2) (West 1994). Such factors in- clude (1) who was responsible for the care and welfare of the child prior to the initiation of custody proceedings; (2) the manner in which physical possession of a child was acquired; and (3) the nature and duration of the possession. In re Marriage of Santa Cruz, 172 Ill. App. 3d 775, 783, 527 N.E.2d 131, 136 (1988); In re Marriage of Sechrest, 202 Ill. App. 3d 865, 871, 560 N.E.2d 1212, 1215 (1990); see also In re Custody of Menconi, 117 Ill. App. 3d 394, 398-99, 453 N.E.2d 835, 839 (1983); Barokas, 109 Ill. App. 3d at 543, 440 N.E.2d at 1041; In re Mar- riage of Nicholas, 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733 (1988). While the supreme court indicated in Kirchner no combi- nation of these factors is sufficient to confer standing on a nonparent if there has not been a voluntary relinquishment of custody by the parent (Kirchner, 164 Ill. 2d at 493, 694 N.E.2d at 335-36), we find that all of the above factors are relevant to the determination of whether there has been voluntary relinquish- ment. An analysis of the above factors is necessary because, aside from a situation of abandonment, a parent does not typi- cally state "I hereby voluntarily, indefinitely relinquish cus- tody of my child," although her actions and the surrounding cir- cumstances may indicate that is exactly what she is doing. Menconi, which was cited with approval in Peterson, provides an example of when a parent may be deemed to have volun- tarily relinquished physical custody of his child. There, the child's natural mother died shortly after the birth of the child and the father placed the child in the home of his parents. The daughter lived with the grandparents for 6 |