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Rule 23 Order filed

June 19, 2002;

Motion to publish granted

August 7, 2002.

JUSTICE KUEHN delivered the opinion of the court:

This case arrives in our court on appeal for the second time. The original appeal tothis court involved Judge David L. Sauer's order in which he refused to vacate an order thathad been entered one week earlier. That order awarded the custody of a minor child to thematernal grandparents (Phillip A. Groff and Carol A. Groff (the Groffs)) by consent. Thechild's mother, Christina L. Groff, either had a change of heart or, as she contends, did notunderstand that what her parents were asking her to sign was something more than adesignation that, upon her incapacitation or death, they would receive the custody of herminor child.

Before we get to the issues raised in this appeal, we will briefly provide this case'sfactual background. Christina gave birth to a child on May 16, 1999. Custody issues hadbeen discussed prior to the child's birth. Christina resided in West Frankfort, Illinois, whilethe Groffs resided in Sandoval, Illinois. Shortly after the child's birth, Christina and herbaby went to her parents' home to spend a few days. After the visit, she and the babyreturned to their home. They returned to Sandoval for another visit on or about June 7,1999, at which time custody issues were again discussed.

On June 9, 1999, the Groffs presented Christina with an entry of appearance, awaiver, and a consent, along with a petition to establish custody. Christina signed the entryand took an identical set to the child's natural father. The natural father, Albert K. Seagle,signed his set on June 9, 1999. On June 11, 1999, the Groffs took all of the documents tocourt, and the ex parte order awarding custody of Christina's child to the Groffs was entered.

Christina received a copy of the order on June 16, 1999, upon which she immediatelysought legal advice. The following day, June 17, 1999, Christina filed a motion to vacatethe June 11, 1999, order. She did not file a separate motion seeking to withdraw orotherwise invalidate her entry of appearance, which contained her consent to a change ofguardianship. Christina claimed that the consent was obtained under duress and coercionon the part of her mother. The motion stated emphatically that Christina did not intend torelinquish the custody of her child.

She supplemented her motion to vacate on August 9, 1999, claiming that the Groffslacked standing to seek the custody of her child.

On August 27, 1999, the trial court held an evidentiary hearing. Testimony fromChristina, the Groffs, and Christina's sister, Kathy Groff, was taken. Kathy Groff'stestimony shed some light on the original reason for these legal maneuvers. She testifiedthat before the baby was born, she overheard conversations between Christina and herparents regarding the unborn child's custody. The Groffs did not want the baby's naturalfather to be able to obtain the custody of the child in the event that Christina died. To helpChristina get established, her parents agreed to care for the child after it was born, untilChristina had a place to live. Kathy Groff believed that her parents would maintain thecustody of the baby after Christina found her place to live.

Following the hearing, the trial court entered an order on September 13, 1999. JudgeDavid L. Sauer found that the Groffs had standing because the minor child (and the child'smother) were living under their roof when the petition was filed and because both parentssigned the consent to the child's custody being placed with the Groffs. Judge Sauer statedthat he did not find that Christina signed the consent under duress or coercion. He deniedboth of Christina's motions. On that same date, Judge Sauer entered an order of visitationon behalf of Christina and the child.

Christina appealed to this court. In that appeal, we ordered Judge Sauer to vacate thedefault order awarding custody of the minor child to the Groffs. In re Custody of Groff, No.5-99-0653, order at 5 (October 4, 2000) (unpublished order pursuant to Supreme Court Rule23 (166 Ill. 2d R. 23)). The issue of the Groffs' standing to seek custody was raised in thatappeal, but because we concluded that Judge Sauer abused his discretion and that the defaultorder should be vacated, we found that it was unnecessary to address the standing issue. In re Custody of Groff, order at 5.

Judge Sauer ultimately vacated the default order on November 9, 2000. In thetranscript of the recorded hearing, it seems clear that Judge Sauer was confused by thiscourt's order. He indicated that because we failed to rule upon the worthiness of Christina'soriginal entry of appearance by which she consented to the custody change, the situation hadnot changed.

From oral argument of this case, we learned that by docket entry, Judge Sauer orderedthat the minor child remain in the custody of the Groffs, subject to Christina's right tovisitation. That docket entry is not a part of the record, but the parties agree that there wasno hearing held prior to the order's entry and no evidence was produced about the bestinterests of the minor child.

On November 9, 2000, the Groffs filed a new petition for temporary and permanentcustody. On November 14, 2000, Christina filed a motion to dismiss the Groffs' petition andalso filed a habeas corpus petition seeking to have her child produced and turned over to herpending the custody determination. In this petition, Christina argued that once the originalorder was vacated, there was no order authorizing the Groffs to retain custody since theorder granting them custody was no longer in existence. Her petition also alleged that theGroffs lacked standing to seek custody. The trial court denied her petition on February 2,2001. This appeal results from that denial.

Section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act provides,"A child custody proceeding is commenced in the court[,] *** by a person other than aparent, by filing a petition for custody of the child in the county in which he is permanentlyresident or found, but only if he is not in the physical custody of one of his parents." 750ILCS 5/601(b)(2) (West 2000). Determining whether the nonparent has standing to seek thecustody of a minor child requires making this initial finding. In re Marriage of Sechrest,202 Ill. App. 3d 865, 870, 560 N.E.2d 1212, 1214 (1990) (relying on In re Custody ofPeterson, 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152 (1986)). Only after finding that thenonparent has standing can the trial court turn to the issue of custody. In re Marriage ofSechrest, 202 Ill. App. 3d at 870, 560 N.E.2d at 1214 (relying on In re Custody of Peterson,112 Ill. 2d at 52, 491 N.E.2d at 1152). Upon determining that the nonparent has standing,the trial court then must determine custody utilizing the "best interest of the child" standard. In re Marriage of Sechrest, 202 Ill. App. 3d at 870, 560 N.E.2d at 1215.

The nonparent bears the burden of proving that he or she has standing. In reMarriage of Siegel, 271 Ill. App. 3d 540, 542, 648 N.E.2d 607, 610 (1995).

Standing, in the context of child custody, means that the court must initially concludethat a nonparent has the custody of the minor. In re Marriage of Sechrest, 202 Ill. App. 3dat 870, 560 N.E.2d at 1214-15 (relying on In re Custody of McCuan, 176 Ill. App. 3d 421,425, 531 N.E.2d 102, 105 (1988)). Stated conversely, a nonparent can only assert standingif the natural parent does not have the physical custody of the child. In re Petition ofKirchner, 164 Ill. 2d 468, 491, 649 N.E.2d 324, 335 (1995). This standing requirement isdesigned to safeguard a natural parent's superior right to the care and custody of his or herchildren. In re A.W.J., 197 Ill. 2d 492, 497, 758 N.E.2d 800, 803 (2001) (relying on In rePetition of Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335).

Whether or not a nonparent has standing to seek custody is a question of law and istherefore reviewed on appeal de novo. In re A.W.J., 316 Ill. App. 3d 91, 96, 736 N.E.2d716, 721 (2000), aff'd, 197 Ill. 2d 492, 758 N.E.2d 800 (2001).

To a nonparent seeking custody, the issue of standing is critical. If the nonparentcannot establish standing, then he or she must plead and prove that the parents are unfit tohave the custody of the child. In re Marriage of Sechrest, 202 Ill. App. 3d at 870, 560N.E.2d at 1215.

Whether the nonparent has the custody of the minor child is determined by examiningthe nonparent's status on the date relief is sought. In re Marriage of Brownfield, 283 Ill.App. 3d 728, 739, 670 N.E.2d 1198, 1206 (1996). In concluding that a nonparent hasphysical custody of a minor child, the trial court must consider factors such as who wasresponsible for the child's care and welfare prior to the initiation of custody proceedings,how the physical possession of the child was acquired, and the nature and duration of thepossession of the child. In re Marriage of Brownfield, 283 Ill. App. 3d at 736, 670 N.E.2dat 1204. Furthermore, the nonparents must show that the natural parents relinquished legalcustody of the child, rather than just physical possession. In re Marriage of Dile, 248 Ill.App. 3d 683, 686, 618 N.E.2d 1165, 1168 (1993).

Initially, we address the Groffs' contention that Christina waived her rights tochallenge the issue of their standing. Christina argues that standing cannot be waived, citingthis court's decision in Jenner v. Wissore, 164 Ill. App. 3d 259, 517 N.E.2d 1220 (1988). In Jenner v. Wissore, we held that defects in subject matter jurisdiction, limited by thedoctrine of standing, cannot be waived. Jenner, 164 Ill. App. 3d at 266-67, 517 N.E.2d at1225. In so holding, we indicated our disagreement with a custody decision out of theSecond District that purported to hold otherwise. Jenner, 164 Ill. App. 3d at 267, 517N.E.2d at 1226 (citing In re Custody of McCarthy, 157 Ill. App. 3d 377, 510 N.E.2d 555(1987)). Our supreme court recently confirmed that the doctrine of standing in a custodycase under section 601(b) of the Illinois Marriage and Dissolution of Marriage Act is notjurisdictional in nature. In re A.W.J., 197 Ill. 2d at 496, 758 N.E.2d at 803. Therefore, theright to challenge standing in a child custody setting can be waived. See In re Custody ofGonzalez, 204 Ill. App. 3d 28, 31-32, 561 N.E.2d 1276, 1278 (1990) (a parent who left achild in a nonparent's custody and thereafter consented to the entry of a temporary custodyorder in the nonparent's favor waived his right to challenge the nonparent's standing to seekthe custody of the child). The fact that Christina signed a consent to guardianship, whichwas either done under a misapprehension as to the consent's meaning or was simply recantedwithin a week of its execution, without a change in the minor child's physical custody, is notenough to effect a waiver in this case.

Having determined that Christina did not waive the right to challenge her parents'standing to seek the custody of her minor child, we turn to the issue of standing itself. Looking to the date upon which the Groffs filed their initial petition for custody, June 11,1999, we find that Christina maintained physical custody of her minor child. She had herown place to live in West Frankfort. On the date that the Groffs went to court, she and thebaby were spending a few days with the Groffs. Visiting with the child's grandparents, inthe presence of the child's natural mother, can hardly be considered physical custody of theminor child. The Groffs only obtained physical custody of the minor child after the trialcourt's default order entered that same date. After we examine the factors that should beconsidered in determining that the Groffs had physical custody of the minor, it becomesclear that the factors cannot be answered in a manner that benefits the Groffs. The care andwelfare of the minor child prior to the court's June 11, 1999, order was provided by thechild's mother, Christina-not the Groffs. The method by which the Groffs obtained physicalcustody was by the trial court's June 11, 1999, order. The child was not abandoned or placedwith the Groffs prior to the date that the petition was filed. Finally, the duration of thechild's possession was nonexistent. Without a doubt, the Groffs did not have physicalpossession of the minor child when they filed their petition on June 11, 1999, and thereforethey lacked standing to seek the custody of Christina's minor child.

Upon the entry of our earlier order directing the trial court to vacate its June 11, 1999,default order and the entry of the trial court's subsequent November 9, 2000, order, there wasno legal vehicle by which the Groffs had custody of Christina's minor child. With no orderin existence, it would seem logical that custody would revert to the individual whomaintained custody prior to June 11, 1999-the natural mother. Without holding a hearingon the child's best interests, the trial court entered an order placing custody on a temporarybasis with the Groffs. The trial court took this step with full knowledge that the naturalmother had recanted her consent.

While this court's earlier order did not specifically state that the custody of the childwas to be returned to the mother and/or that the mother should be allowed to withdraw herconsent, there were several indications in the order to that effect. Justice Charles Chapmanstated, "[T]he court may vacate a default judgment entered against a defendant despite hisor her signature on an entry of appearance." In re Custody of Groff, order at 4. On the issueof the potential impact of setting aside the default judgment, Justice Chapman stated:

"Within a week after the trial court entered the default judgment, Christina filed themotion to vacate. Had the trial court correctly decided to vacate the default judgmentat that time, there would have been virtually no impact on either [the minor child] orthe Groffs, because custody would have been changed for a period of only oneweek."

In re Custody of Groff, order at 4.

Clearly, this court anticipated that vacating the default judgment would result in the returnof the minor child to Christina's custody pending further proceedings on the Groffs' originalpetition for custody.

We conclude that the Groffs lacked standing to seek custody on June 11, 1999. Wefind that if presented with a motion to withdraw Christina's original consent, the trial courtshould allow such a motion. Finally, we reverse the trial court's February 2, 2001, orderdenying Christina's writ of habeas corpus, and we remand this matter to the trial court forthe entry of an order consistent with this opinion.

Reversed; cause remanded with directions.

GOLDENHERSH and WELCH, JJ., concur.