In re Marriage of Feig

May 1, 1998

No. 4--97--0648
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

In Re: the Marriage of ) Appeal from the Circuit
TIMOTHY FEIG, ) Court of the 21st
Petitioner-Appellant, ) Judicial Circuit,
) Iroquois County, Illinois
and )
)
KATHERINE FEIG, n/k/a KATHERINE )
BRADY, ) No. 91 D 151
)
Defendant, )
)
and )
)
MILTON BRADY and CYNTHIA BRADY, ) Honorable
) Clark Erickson
Intervenors-Appellees. ) Judge Presiding
_________________________________________________________________

JUSTICE HOLDRIDGE delivered the Opinion of the court:
________________________________________________________________

This is an interlocutory appeal from a decision of the
circuit court of Iroquois County which allowed Milton and Cynthia
Brady (the Bradys) to intervene and petition for custody in a
pending modification of custody proceeding concerning their
granddaughter, Nikita Feig (Niki), the minor child of Timothy
Feig (Tim) and Katherine Brady (Kathy).
Facts
In April 1992, Tim and Kathy's marriage was dissolved. The
parties entered into a marital settlement agreement wherein Tim
agreed to Kathy's sole custody of Niki, subject to his reasonable
visitation. At the time of the divorce, the military had
stationed Tim in California, and Kathy and Niki resided with the
Bradys. During the summer of 1992, Kathy and Niki moved to
California and resided with Tim for approximately six months.
Thereafter, Kathy and Niki moved back to the Bradys. Although
Niki has primarily lived with the Bradys since she was six months
old, Kathy has resided with them on and off.
In the summer of 1994, Kathy and her father delivered Niki
to Tim's parents in Indiana in order for her to travel with them
to California for summer visitation with Tim. Tim was to return
Niki prior to the start of school, however, Tim kept her until
after the beginning of the school year.
In August 1994, Tim filed a petition to modify custody in
the circuit court of Iroquois County, alleging that Kathy
frequently absented herself from Niki and undertook a transient
and unstable lifestyle.
At a hearing for temporary relief, the Bradys appeared with
counsel, and Kathy appeared without counsel. Tim objected to the
Brady's participation in the proceeding without filing a formal
petition to intervene and challenged their standing. The Bradys
stated that they did not intend to seek custody of Niki. The
matter was set for hearing, and the court invited the Bradys to
formally intervene. Pending determination of the modification
petition, the court ordered Tim to return Niki to Kathy,
conditioned upon Niki residing with the Bradys.
At an October 1994 hearing, the Bradys advised the court
that they would not formally intervene in the case. The case was
continued, and in January 1995, the matter was taken under
advisement. During this time, Tim filed a motion to re-open the
evidence. Tim alleged that he had moved to Indiana to be closer
to Niki, and that Kathy had taken up a separate residence from
Niki. Tim also filed several rules to show cause against Kathy,
alleging that he was deprived visitation with Niki.
In February 1996, Kathy's attorney withdrew from the case.
In March 1996, after the Bradys allegedly denied Tim visitation,
and with Kathy's whereabouts unknown, Tim filed a petition for
writ of habeas corpus against them. In April 1996, the Bradys
filed a petition to intervene for custody. Over Tim's standing
objection, the court allowed the Bradys time to present evidence
and rescheduled the case for hearing.
The Bradys withdrew and dismissed their petition to
intervene and for custody. Tim and Kathy continued to present
evidence on the modification petition. In August 1996, the
Bradys once again informed the court that they did not intend to
file a petition to intervene. On November 22, 1996, the Bradys
filed a motion to reinstate their petition to intervene, which
was set for hearing in June 1997. Tim filed a motion to dismiss,
the court granted the motion finding that the petition did not
allege acquiescence or abandonment by Tim. However, the court
allowed the Bradys leave to refile, which they did. In June
1997, and over Tim's objection, the court held an evidentiary
hearing concerning the Brady's standing to intervene.
Testimony was presented and at the close of the Brady's
case, Tim moved for a directed finding denying the petition to
intervene. The court found that the Bradys had standing and
allowed the petition to intervene. At Tim's request, the court
certified the question for an immediate interlocutory appeal,
which was allowed in August 1997.
Analysis
Standing.
Tim contends that the court committed reversible error in
finding that the Bradys had standing to intervene. Tim asserts
that the standing requirements of section 601(b)(2) of the
Illinois Marriage and Dissolution of Marriage Act (the Act) (750
ILCS 601(b)(2) (West 1994)) were not met. Specifically, he
asserts the requirement that Niki "not [be] in the physical
custody of one of his [her] parents" was absent. 750 ILCS
601(b)(2) (West 1994).
A non-parent seeking standing under section 601 of the Act
has the burden of showing that the child is in his physical
custody, which requires that the child's parents voluntarily
relinquish custody of the child to the non-parent. See Franklin
v. Devriendt, 1997 Ill. App. LEXIS 286. The voluntary
relinquishment by the parents to a non-parent must be clear and
indefinite. In re Kirchner, 164 Ill. 2d 468, 491 (1995); In re
Marriage of Dile, 248 Ill. App. 3d 683 (1993) (father did not
relinquish custody by agreeing to allow grandparents to retain
possession of the child temporarily.)
In determining the physical custody of a child, courts do
not limit their consideration to physical possession at the time
of filing, but also consider how the possession came about, the
nature and duration of the possession (In re Marriage of Carey,
188 Ill. App. 3d 1040, 1048 (1989)), and who provided for the
child's care, custody, and welfare (In re Marriage of Kulawiak,
256 Ill. App. 3d 956, 962 (1993)).
A reviewing court will not disturb an order of a circuit
court in a custody proceeding unless it is against the manifest
weight of the evidence or results in a manifest injustice. In re
custody of McCuan, 176 Ill. App. 3d 421, 427 (1988). A court's
ruling is against the manifest weight of the evidence only when
an opposite conclusion is clearly apparent. Tally Ho Association
v. Worth Bank & Trust Co., 264 Ill. App. 3d 957 (1994).
In finding that the Bradys had standing to intervene, the
court stated that it could not ignore the fact that "the evidence
is overwhelming that this child has lived with her grandparents
for the vast majority of eight years *** since the age of 6
months with the exception of the trips to California and
Georgia." It also appeared to the court that for the majority of
her life it was the Bradys who were providing the day-to-day
support and care for Niki.
The record indicates that Kathy and Niki resided with the
Bradys from the time of the parties' divorce until the summer of
1992, when they lived with Tim in California for approximately
six months. In the fall of 1992, Kathy and Niki returned to the
Bradys, where they stayed until Kathy relocated to Champaign.
After one month in Champaign, Kathy and Niki returned to the
Bradys. In the summer of 1993, Kathy and Niki visited family in
Georgia for approximately two months.
The record shows that more often than not, Niki resided with
the Bradys while Kathy was absent from the residence. Milton
described Kathy's behavior as "she's always in and out *** going
up to her grandmother's and back." Kathy acknowledged that at
times she stays with her grandmother, and that periodically she
stays in a local motel with her fiancé. Kathy testified that on
occasion she would leave Niki with her parents and go "on the
road," sometimes for over a week at a time, with her fiancé who
was a truck driver. Kathy admitted in court that she "could walk
out of here today and tell my parents that I wanted to go to my
cousin's house overnight and they never ever have a problem with
taking care of my kids when I needed them to."
Although Kathy's absences from Niki alone cannot serve to
confer standing to the Bradys (See In re Marriage of Sechrest,
202 Ill. App. 3d 865 (1990) (bad parenting is not enough to
divest parent of custody)), the record shows that the Bradys
provided for Niki's financial support, including medical care,
and physical care.
In regard to Tim, the Bradys maintain that there were times
when he had sporadic telephone contact and visitation with Niki.
Cynthia testified that Tim often told her that he was glad she
and Milton "were there for Nikki and taking such good care of her
since he wasn't able to do that himself." As early as the fall
of 1995, Cynthia maintains that Tim had conversations with her
concerning the Brady's willingness to obtain custody of Niki; to
the effect that "[h]e [Tim] would be willing to give up the
custody battle if we [the Brady's] would agree to take physical
custody [of Niki]."
The record establishes that Tim was aware that Niki's
primary residence was at the Bradys, and that Kathy had moved in
and out of the Brady's household since the divorce. Tim
testified that Kathy has "been in and out of her parent's house
so many times I am sure they have a revolving door. *** Her
parents are at a moments notice subject to taking care of both of
her children for an unknown period of time. I [Tim] discussed
that, in fact, with Cindy ****." Tim also appeared to have
agreed to Niki living with the Bradys, as there is no evidence
that he objected to that arrangement. On cross examination, Tim
testified that his telephone contact with Niki was made to the
Bradys. Importantly, Tim admitted on cross examination that
after he filed his modification petition, he told the Bradys that
he would agree to their having custody of Niki, as long as Kathy
did not have custody of her. Unlike the father in Dile, Tim's
admission suggests that he did not view Niki's living arrangement
with the Bradys as a temporary situation.
The record supports the court's finding that Niki's primary
residence since she was six months old was at the Bradys, and
that the Bradys provided for her financial and physical needs.
The record evidences Kathy's voluntary delivery of Niki to the
Bradys, her repeated absences from the Bradys, and Tim's
acquiescence to Niki's residing with the Bradys while Kathy was
absent. It appears to this court that the voluntary nature of
the transfer of Niki to the Bradys and the lengthy and
integrating care provided by the Bradys to Niki in their home
were significant factors for the court to consider when
determining standing.
After careful review of the record, we find that it was not
against the manifest weight of the evidence for the court to
conclude that the Bradys had established that Niki had "not
[been] in the physical custody of one of [her] parents," as
required by 601(b)(2) of the Act. We therefore find that the
court's determination that the Bradys had standing to intervene
was not against the manifest weight of the evidence.
Petition to Intervene.
Tim next contends that the court erred in refusing to
dismiss the Brady's petition to intervene. Tim maintains that
the Brady's petition to intervene was insufficient as a matter of
law because it failed to allege that either Kathy or Tim
permanently and indefinitely relinquished custody of Niki to
them. In re Marriage of Siegel, 271 Ill. App. 3d 540, 544 (1995)
(petition should allege facts sufficient for court to conclude,
if proven, non-parent had standing under 601(b)(2) of the Act.)
The Brady's petition to intervene alleged that Kathy had
voluntarily relinquished physical custody and control of Niki to
them since her divorce, with the exception of her trip to
Georgia, which occurred prior to Tim filing his modification
petition. It alleged further that Tim was aware that Niki was in
the Brady's possession and control, and that he voluntarily
agreed to that arrangement from the time of the parties' divorce,
and until the filing of his modification petition.
We find that these facts, if proven, are sufficient to show
that either Kathy or Tim voluntarily relinquished custody of Niki
to the Bradys, thereby giving the Bradys standing to intervene.
Waiver.
Lastly, Tim contends that the Bradys have waived their right
to intervene in this case considering they: (1) allowed Tim and
Kathy to litigate custody for several years without filing a
petition to intervene; (2) appeared with legal counsel several
times and refused to intervene, even when invited to do so by the
court; and (3) filed and dismissed a petition to intervene.
In addition to contending that the Brady's petition to
intervene was untimely (See 735 ILCS 5/2-408(b)(West 1994)), Tim
asserts that he was prejudiced by the Brady's delay, and he
believes that allowing the Bradys to intervene after three years
of testimony would only postpone the inevitable and make the
eventual transition that much more traumatic for Niki.
In the Sechrest case, the court found that a mother waived
her standing objection by allowing the case to continue for three
years without raising a standing issue. See also In re Custody
of McCarthy, 157 Ill. App. 3d 377 (1987) (lack of standing is an
affirmative defense that is waived unless raised during the
pleading stage.)
In this matter, the court recognized that "[a]s far as the
estoppel issue goes *** [i]t certainly has the impact of
prolonging the proceedings, but this is a case in which the
Bradys have always been if not deeply meshed *** their presence
has always been here. [I]t would *** ignore reality to conclude
that it is a surprise that the Bradys would file at some point
short of resolution of this matter a motion to intervene." We
agree.
The Bradys may not have filed their petition to intervene
expeditiously, however, they appeared with counsel at every court
proceeding concerning this matter. We agree that it would be
unreasonable to infer that Tim was surprised. We note that the
court acknowledged the instant three year custody proceeding has
taken "way too long," and it recognized that "there's some
extenuating circumstances *** a shift in judges *** [and the
court's] schedule hasn't been the best."
Under these circumstances, we find that the Bradys have not
waived their right to intervene. In addition to finding that the
court's decision was not against the manifest weight of the
evidence, considering the importance of custody issues, we find
that a manifest injustice would be served by reversing the
court's decision.
Based on the foregoing, we affirm the circuit court of
Iroquois County.
Affirmed.
BRESLIN and SLATER, JJ., concurred.