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Docket No. 90446-Agenda 27-May 2001.

In re A.W.J. (Jean Tawrel, Appellee, v. Linda Patterson et al., 
Appellants).

Opinion filed October 18, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

A.W.J. is a minor whose father killed his mother. WhileA.W.J.'s father was in pretrial custody, A.W.J.'s maternalgrandmother filed a custody petition in the circuit court ofDu Page County pursuant to section 601(b) of the Illinois Marriageand Dissolution of Marriage Act (the Act) (750 ILCS 5/601(b)(West 1996)). The petition was opposed by the paternalgrandparents. The trial court granted custody to the maternalgrandmother in a final order which contained Rule 304(a)language. The paternal grandparents appealed, and the appellatecourt affirmed (316 Ill. App. 3d 91). The father died while theappeal was pending. We granted leave to appeal. 177 Ill. 2d R.315(a). The sole question on which the paternal grandparentssought leave to appeal is whether the maternal grandmother hadstanding to bring the petition. We now affirm.

BACKGROUND

A.W.J. was born to Aileen Tawrel and Richard J. on August13, 1995. Aileen and Richard lived together, with A.W.J., untilJuly 21, 1996, on which date Richard killed Aileen. After Aileen'sdeath, before his apprehension by the authorities, Richard broughtA.W.J. to the home of Ruth Tovella, Richard's grandmother. OnJuly 23, Jean Tawrel, A.W.J.'s maternal grandmother, went toTovella's home and retrieved A.W.J.

A week later, Jean filed a petition for guardianship of A.W.J.pursuant to the Probate Act of 1975 (755 ILCS 5/11-1 et seq.(West 1994)). However, the circuit court dismissed this petitionfor lack of subject matter jurisdiction in August, after Richardappointed his mother, Linda Patterson, short-term guardian ofA.W.J. See 755 ILCS 5/11-5.4 (West 1994). Thereafter, Richardcontinually reappointed Linda short-term guardian of A.W.J. every60 days.

After the dismissal of the Probate Act petition, A.W.J. wasplaced in the custody of Linda Patterson and Mitch Patterson, herhusband. Jean then filed the petition which forms the basis for theinstant proceedings, seeking custody of A.W.J. pursuant to section601(b) of the Act (750 ILCS 5/601(b) (West 1994)). In addition tocustody, the petition also requested: that the court block anyfurther visitation with Richard; that Richard's parental rights beterminated; and that Jean be permitted to adopt A.W.J.

The Pattersons moved to dismiss the petition for lack ofstanding. The Pattersons noted that the statute permits a nonparentto initiate a custody proceeding only with respect to a child not inthe "physical custody" of one of his parents. See 750 ILCS5/601(b)(2) (West 1994). They argued that Richard retained legalcustody of A.W.J. despite his incarceration, and Jean lackedstanding because she was not in possession of A.W.J. The trialcourt denied the motion.

After the denial of the motion to dismiss, the Pattersons fileda counter-petition for custody under section 601(b) of the Act.There, they alleged that A.W.J. "is not within the physicalpossession of his natural father, the sole surviving parent,[Richard]," and that "the physical custody of [A.W.J.] has beenvoluntarily relinquished by [Richard] to [the Pattersons]."

The court conducted a hearing to determine what custodyarrangement would be in the best interests of A.W.J. The courtheard testimony from the parties involved, as well as experttestimony. Afterwards, the court granted sole custody to Jean andcurtailed all contact between A.W.J. and his father. The courtreserved ruling on the issues of termination of parental rights andadoption. Shortly thereafter, the court entered an order to the effectthat the ruling on custody and visitation was final and there was nojust reason for delaying enforcement or appeal. See 155 Ill. 2d R.304(a). The Pattersons filed a timely notice of appeal.

Before the appellate court, the Pattersons contended that Jeanlacked standing to petition for custody under section 601(b); thatthe trial court should have treated the proceeding as a petition tomodify custody, rather than as an original custody petition; andthat the trial court's ruling awarding custody to Jean was againstthe manifest weight of the evidence. 316 Ill. App. 3d at 92. Withrespect to the first issue, the appellate court concluded that Jeanhad standing because A.W.J. was not in the physical custody ofeither parent, since "it is not possible for a parent who isincarcerated to act as the physical custodian of his or her children."316 Ill. App. 3d at 98. In an unpublished portion of the disposition,the court rejected the other two arguments as well, and affirmedthe trial court in all respects. The Pattersons then filed for leave toappeal to this court. See 177 Ill. 2d R. 315(a).

ANALYSIS

I

Although multiple issues were raised before the appellatecourt, the only question the Pattersons raised in their petition forleave to appeal to this court is whether Jean had standing to fileher petition. In their arguments concerning this issue, the partiesdebate the meaning of section 601(b)(2) of the Act, specifically theprovision which allows nonparents to commence custodyproceedings if a child "is not in the physical custody of one of hisparents." 750 ILCS 5/601(b)(2) (West 1992). Jean contends thatA.W.J. should not have been considered to be in Richard's"physical custody" during Richard's incarceration. The Pattersonsdisagree, noting that Richard had not voluntarily abandoned hischild; that he still had legal custody of A.W.J.; and that he had notyet, at the time the motion to dismiss was decided, been foundguilty of the murder.

Although the parties devote most of their energy to this issue,in the circumstances of this case we need not decide whether thetrial court acted correctly in denying the motion to dismiss. As weshall explain below, (1) the standing requirement imposed onnonparents pursuant to section 601(b)(2) is not jurisdictional; (2)the parental interests sought to be protected by section 601(b)(2)are no longer at issue in this case because Richard has died; and(3) it would be against A.W.J.'s best interests to reverse the awardof custody.

First, even assuming, arguendo, that the trial court did err infailing to dismiss Jean's petition, lack of standing to file a petitionunder section 601(b) of the Act does not implicate the circuitcourt's jurisdiction. In re Custody of McCuan, 176 Ill. App. 3d421, 425 (1988). See also In re Custody of K.P.L., 304 Ill. App. 3d481, 486 (1999) (and cases cited therein) (lack of standing to filepetition under 601(b) is an affirmative defense which is waived ifnot pled). See generally Greer v. Illinois Housing DevelopmentAuthority, 122 Ill. 2d 462, 494 (1988) (holding that, in Illinois,lack of standing is an affirmative defense, and contrasting Illinoiswith federal courts "where lack of article III (U.S. Const., art. III)standing is a bar to jurisdiction"); see also People v. $1,124,905U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314,352 (1997) (Freeman, C.J., dissenting) (noting that common lawstanding is an "affirmative defense" which "must be pleaded orelse it is waived"). As our appellate court has explained, anonparent's "standing" under section 601(b)(2) does not refer towhether a litigant has a justiciable interest in a controversy (see Inre Estate of Wellman, 174 Ill. 2d 335, 344 (1996)). It is merely athreshold issue, and thus although the nonparent's standing mustbe determined before proceeding to a "best interests"determination, it is not a component of the court's subject matterjurisdiction. In re Custody of McCuan, 176 Ill. App. 3d at 425.Because the error alleged is not jurisdictional, we would not berequired to vacate the court's order even if we found the court tohave erred.

Second, in the circumstances of this case, any error washarmless, for regardless of whether Jean had standing undersection 601(b)(2) at the time she brought her petition, Richard, aspreviously noted, has since died. The standing requirement ofsection 601(b)(2) of the Act is designed to "ensure[ ] that thesuperior right of natural parents to the care and custody of theirchildren is safeguarded." In re Petition of Kirchner, 164 Ill. 2d468, 491 (1995). This purpose can no longer be served after bothof the minor's parents have died, at which point the minor wouldclearly no longer be in the physical custody of either of his parents.Thus, again, even assuming that Jean lacked standing to bring herpetition at the time she filed it, she did have standing to do so afterRichard's death. And it would serve no purpose to remand for Jeanto refile her petition, when no remaining party to the case wasprejudiced by any error.

Finally, and most overridingly, not only would reversal for aviolation of section 601(b)(2) not serve to protect the interests ofany remaining party to the case, it would be greatly against theinterests of A.W.J. The circuit court has already determined thatit is in the best interests of A.W.J. to be placed in the custody ofJean. Like proceedings under the Adoption Act (750 ILCS 50/1 etseq. (West 1994)) and the Juvenile Court Act of 1987 (705 ILCS405/2-1 et seq. (West 1994)), custody proceedings under theMarriage and Dissolution of Marriage Act are guided by theoverriding lodestar of the best interests of the child or childreninvolved. Moseley v. Goldstone, 89 Ill. App. 3d 360, 369 (1980).See also Prince v. Herrera, 261 Ill. App. 3d 606, 611 (1994) (bestinterests of the child are of paramount concern in custodyproceedings); In re Marriage of Petraitis, 263 Ill. App. 3d 1022,1030 (1993) (same); cf. Sommer v. Borovic, 69 Ill. 2d 220, 233(1977) (when minors are involved in dissolution proceedings "thecourt has the authority and the responsibility to act for the child'scare, custody and support until it reaches majority," and "thecourt's primary concern obviously is not the wishes of the parentsbut rather the best interests of the child"). This factor also weighsheavily against reversal.

In this case any error the court may have committed in findingJean to have standing based on Richard's pretrial incarceration didnot result in a jurisdictional defect and did not affect theproceedings. Because Richard subsequently died, a nonparentcould now bring a petition under section 601(b)(2) of the Act, asno parent remains to be protected by section 601(b)(2). Noremaining party to the case was affected by the purported error.Finally, it would be against the best interests of A.W.J. to requirea retrial in the instant case, because the trial court already hasfound what placement is in the best interests of A.W.J., and nosuggestion is raised before this court that the circuit court'sconclusion was against the manifest weight of the evidence. Givenall of these factors, we believe that the result in this case must beaffirmed.

Because of our resolution of this issue, we need not determinewhether the circuit court did, in fact, err in finding Jean to havestanding based on Richard's incarceration. Nor need we considerwhat, if any, preclusive effect might be accorded to the allegationsin the Pattersons' counter-petition for custody, that A.W.J. was"not within the physical possession of" Richard and that Richardhad "voluntarily relinquished" physical custody of A.W.J. to the Pattersons.

II

As previously noted, Jean's standing to bring the petition wasthe sole issue raised in the petition for leave to appeal. In theirbrief to this court, the Pattersons raise a second, separate issue.They contend that even though the court never technically awardedthem even temporary custody of A.W.J., the court should havetreated the action as a proceeding to modify custody, rather than asan initial custody determination, because they had cared forA.W.J. for almost three years by the time the court rendered itsdecision.

Our Rule 315(b)(3) requires a petition for leave to appeal tostate "the points relied upon for reversal of the judgment of theAppellate Court." 177 Ill. 2d R. 315(b)(3). As Jean notes, issuesnot addressed in the petition for leave to appeal are not properlybefore this court, but are waived. City of Naperville v. Watson, 175Ill. 2d 399, 406 (1997); Federal Deposit Insurance Corp. v.O'Malley, 163 Ill. 2d 130, 154 (1994); Deal v. Byford, 127 Ill. 2d192, 200 (1989). We see no reason to override the waiver (seeDeal, 127 Ill. 2d at 200-01), especially in light of the Pattersons'admission that "the law does not create any presumptions in favorof temporary custodians." They rely solely on In re Marriage ofHefer, 282 Ill. App. 3d 73 (1996), which states that "[w]here therehas been a lengthy period of temporary custody, the case may bemore like a petition to modify custody than like an initial award ofcustody." Hefer, 282 Ill. App. 3d at 77. However, the Hefer courtwent on specifically to distinguish initial custody determinationsfrom petitions to modify on this precise issue. Hefer, 282 Ill. App.3d at 78 ("there is no presumption in favor of the existingcustodian under section 602 [of the Act] as there is in modificationcases under section 610"). The case is also factuallydistinguishable. There, the children had been in the mother'scustody pursuant to an agreed-upon temporary custody order, andthe father had proposed to take them out of state, which in and ofitself requires a best interests determination with the burden ofproof on the party proposing the removal. See 750 ILCS 5/609(a)(West 1994). No similar circumstances exist in this case.Accordingly, as the Pattersons have offered no authority whichsupports their position, and considering especially that theappellate court addressed this issue, we see no reason to overridethe waiver. See People v. Ward, 113 Ill. 2d 516, 523 (1986)(refusing to reach issue waived because of failure to include inpetition for leave to appeal, where appellate court had alreadyreviewed issue).

CONCLUSION

For the reasons above stated, we affirm the judgment of theappellate court.

Affirmed.