In re Parentage of Brumfield

Annotate this Case
NO. 4-95-0500

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In Re: the Parentage of Unborn Child ) Appeal from
Brumfield, ) Circuit Court of
BRIAN DEAN BRUMFIELD, ) Logan County
Petitioner-Appellee, ) No. 93F23
v. )
AMY R. YARD, )
Respondent, )
and )
TERRY DEAN GINGER and KERI JEAN GINGER, ) Honorable
Third Party Respondents- ) Gerald G. Dehner,
Appellants. ) Judge Presiding.
_________________________________________________________________

JUSTICE GREEN delivered the opinion of the court:
This is another in a long line of cases involving
disputes between one or both natural parents of a child and
nonparents as to the custody of the child. This suit was brought
under section 7 of the Parentage Act of 1984 (Parentage Act) (750
ILCS 45/7 (West 1992)). The dispute is part of a controversy which
involves the complicated relationship between that legislation and
the Illinois Marriage and Dissolution of Marriage Act (Marriage
Act) (750 ILCS 5/101 et seq. (West 1992)), the Adoption Act (750
ILCS 50/0.01 et seq. (West 1992)), the Probate Act of 1975 (Probate
Act) (755 ILCS 5/1-1 et seq. (West 1992)), the Juvenile Court Act
of 1987 (Juvenile Act) (705 ILCS 405/1-1 et seq. (West 1992)), and
the proceedings for a writ of habeas corpus (735 ILCS 5/10-101 et
seq. (West 1992)). In affirming this case, we believe that we and
the circuit court have followed precedent.
On March 3, 1993, petitioner Brian Dean Brumfield filed
this suit in the circuit court of Logan County against respondent
Amy Yard seeking custody of an unborn child with which she was
pregnant and of which he claimed he was the father. The petition
was filed pursuant to section 7 of the Parentage Act and petitioner
requested the establishment of a parent-child relationship with the
child and an award of custody to him. He asked that the question
of support be reserved. The child F.Y. was born on April 25, 1993,
and on November 12, 1993, respondent executed an irrevocable
consent for the adoption of F.Y.
Also on November 12, 1993, Terry Dean Ginger and Keri
Jean Ginger, husband and wife, filed a petition in the circuit
court of Christian County seeking to adopt F.Y. After petitioner
was served with process in that proceeding, he filed a petition in
this Parentage Act proceeding on November 23, 1993, requesting
paternity blood testing (750 ILCS 45/11 (West 1992)). That request
was granted, the necessary individuals submitted to blood tests,
and when respondent failed to appear for a February 2, 1994, court
date in the parentage case, the court entered an order defaulting
her and declaring petitioner the father of F.Y. but reserving the
questions of custody and child support. Although the Gingers were
not then parties to the parentage case and had not yet sought
intervention, for the purpose of the matters involved in this
appeal, they do not dispute petitioner's paternity.
On February 22, 1994, the Gingers filed a petition to
intervene in the parentage proceeding seeking to obtain custody of
F.Y. and other relief. After an evidentiary hearing, the court
allowed intervention on November 30, 1994, determining the Gingers
had standing to intervene. Petitioner sought leave of this court
to appeal that interlocutory order pursuant to Supreme Court Rule
308 (155 Ill. 2d R. 308). We denied the appeal. In re Parentage
of Brumfield, No. 4-94-1076 (February 7, 1995) (leave to appeal
denied). On April 6, 1995, after a hearing on petitioner's motion,
the court reconsidered its ruling allowing intervention and denied
intervention, on the basis that the Gingers lacked standing to seek
custody of F.Y. The court then made a finding pursuant to Supreme
Court Rule 304(a) (155 Ill. 2d R. 304(a)). The cited reason for
the court's change was the recent highly publicized decision of the
Supreme Court of Illinois in In re Petition of Kirchner, 164 Ill. 2d 468, 649 N.E.2d 324 (1995). The Gingers have appealed. We
affirm.
Much of the evidence at the hearings on intervention was
undisputed. Petitioner and respondent had been engaged and lived
together for a period but separated in August 1992. Shortly
thereafter, respondent learned she was pregnant and both she and
petitioner believed petitioner was the father. After F.Y. was
born, petitioner visited respondent and F.Y. in the hospital. For
approximately the next seven months respondent and F.Y. lived with
respondent's grandmother or in an apartment in Christian County.
During this period, petitioner and respondent did not resume their
romantic relationship but petitioner visited the baby almost every
weekend and once F.Y. was about two months old, petitioner began
taking her for overnight visits.
A dispute developed between petitioner and respondent as
to whether petitioner kept the child too long on one visit and
respondent made greater restrictions on petitioner's subsequent
visits. However, petitioner continued to attempt to visit F.Y.
every weekend and was permitted to do so approximately every other
weekend until mid- or late-October 1993, when petitioner attempted
a visit but was told by respondent that she had placed F.Y. with
some relatives whose names she did not disclose. On November 3,
1993, respondent met with personnel of an office of the Illinois
Department of Children and Family Services (DCFS), who had
contacted Keri Ginger to be at the meeting. After that meeting,
respondent brought F.Y. to Keri Ginger and left F.Y. with Keri
telling her she and her husband, Dean, could adopt F.Y. The
Gingers' filing of the adoption complaint in Christian County and
the petition to intervene here followed.
Central to our decision is section 601(b)(2) of the
Marriage Act, which states as follows:
"Jurisdiction--Commencement of proceeding.
***
(b) A child custody proceeding is
commenced 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 1992).
The issues on appeal are (1) whether the requirements of section
601(b)(2) of the Marriage Act apply to proceedings under the
Parentage Act; (2) if so, whether they apply to prospective
intervenors as well as original parties; and (3) if both (1) and
(2) are so, whether the Gingers proved that neither of F.Y.'s
parents had "physical custody" of her at the time the Gingers
sought to intervene.
If section 601(b)(2) of the Marriage Act was not
applicable to this action, the Gingers should have been permitted
to intervene. As the Parentage Act makes no express provision for
intervention, the provisions of the Code of Civil Procedure (Code)
(735 ILCS 5/2-408 (West 1992)) would ordinarily apply. People ex
rel. Yarn v. Yarn, 73 Ill. App. 3d 454, 456, 392 N.E.2d 606, 607
(1979); People ex rel. Mathis v. Brown, 44 Ill. App. 3d 783, 786,
358 N.E.2d 1160, 1162 (1976). Section 2-408 of the Code permits
intervention upon demonstration of a recognizable or enforceable
interest in the litigation. 735 ILCS 4/2-408 (West 1992); Maiter
v. Chicago Board of Education, 82 Ill. 2d 373, 382, 415 N.E.2d 1034, 1037 (1980); Soyland Power Co-operative, Inc. v. Illinois
Power Co., 213 Ill. App. 3d 916, 918-19, 572 N.E.2d 462, 464
(1991). If intervention on this basis were permissible, then the
question of the custody of F.Y. would be decided under the
standards of section 602(a) of the Marriage Act (750 ILCS 5/602(a)
(West 1992)). The court would seek to determine F.Y.'s best
interests after taking into consideration the strong preference
given to the rights of a parent to the custody of his natural child
(In re Custody of Townsend, 86 Ill. 2d 502, 514-15, 427 N.E.2d 1231, 1237-38 (1981)). However, as we will explain, we hold that
section 601(b)(2) of the Marriage Act was applicable to this
action.
As we also explain, we hold that the standing provisions
embodied in section 601(b)(2) of the Marriage Act apply to those
seeking custody under the Parentage Act regardless of whether they
are intervenors or interested parties. If neither petitioner nor
respondent had "physical custody" of F.Y. at the time intervention
was sought, the Gingers would have been entitled to a hearing on
custody under the Townsend standards. However, as we will explain,
we hold that under supreme and appellate court decisions the phrase
"physical custody" has been given a special meaning which required
the circuit court to determine that petitioner had "physical
custody" at the time intervention was sought and thus denied the
Gingers standing to intervene.
In regard to the applicability of section 601(b)(2) of
the Marriage Act to this case, we note that section 14(a)(1) of the
Parentage Act states that a judgment thereunder "may contain
provisions concerning the custody and guardianship of the child ***
which the court shall determine in accordance with relevant factors
set forth in the [Marriage Act] and any other applicable law of
Illinois, to guide the court in a finding in the best interests of
the child." 750 ILCS 45/14(a)(1) (West 1992). Section 14(a)(1),
as amended, also states that "[i]n determining custody *** the
court shall apply the relevant standards of [the Marriage Act]."
750 ILCS 45/14(a)(1) (West 1994) (as amended by Pub. Act 88-538,
10, effective January 1, 1995 (1994 Ill. Laws 154, 158-59)).
In Ligon v. Williams, 264 Ill. App. 3d 701, 709, 637 N.E.2d 633, 639 (1994), the court stated that in proceedings under
the Parentage Act, courts are "bound to consider custody
determinations *** following the statutory guidelines in the
[Marriage Act]." The language in Ligon was dictum as that court
determined the question of custody was not before it because the
question was not raised by the pleadings in the circuit court. The
Ligon opinion cited as guidelines to be followed those found in
section 602 of the Marriage Act (750 ILCS 5/602 (West 1992)), which
provide for a custody determination to be made on the basis of the
best interests of the child involved. As Ligon was a dispute
between parents, the standing requirement of section 601(b)(2) of
the Marriage Act was not applicable.
The strongest reason why we hold that compliance with
section 601(b)(2) of the Marriage Act was required of the Gingers
here is the pervasive coverage given to section 601(b)(2) by the
supreme court in Kirchner. There the natural father of a child
born out of wedlock brought an original petition for writ of habeas
corpus in that court. The court granted leave for filing the
petition and after a hearing ordered the writ to issue. The
respondents were persons with whom the mother had placed the child.
The adoption of the child by those respondents had been set aside
on appeal because of deception victimizing the petitioner. In re
Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994).
One of the basic reasons for allowing writ to issue in
Kirchner was the determination that the child was in the "physical
custody" of the father and thus the respondents lacked standing
under section 601(b)(2) of the Marriage Act to seek custody of the
child. If lack of standing under section 601(b)(2) can prevent
nonparents from seeking to defend a habeas corpus action by seeking
custody, it should also defeat an assertion by a nonparent in a
request of a parent for custody in a suit under the Parentage Act.
Only a brief discussion is necessary on the question of
whether the provisions of section 601(b)(2) of the Marriage Act
apply to those seeking intervention in cases under the Parentage
Act as well as to the parties. That section does apply to those
who seek to intervene asking for custody in proceedings under the
Marriage Act just as it applies to original parties. In re
Marriage of Carey, 188 Ill. App. 3d 1040, 1046, 544 N.E.2d 1293,
1296 (1989); In re Marriage of Nicholas, 170 Ill. App. 3d 171, 176,
524 N.E.2d 728, 731 (1988). Logic requires a similar treatment in
cases under the Parentage Act.
We now turn to the question of whether F.Y. was in the
"physical custody" of petitioner at the time the Gingers filed
their petition to intervene, thus denying them standing to seek her
custody. Beginning with the case of In re Custody of Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150 (1986), a special meaning has been
given to the phrase "physical custody." In Peterson, the child's
mother and father had divorced and, though both parents were found
to be fit to have custody, the mother was awarded custody, with the
father having visitation rights. Peterson, 112 Ill. 2d at 51, 491 N.E.2d at 1151.
In Peterson, 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 nearby and exercised
his visitation rights two days per week. When the mother
eventually died of her illness, the grandparents petitioned for
custody under the Marriage Act. The supreme court ultimately held
that the circuit court properly dismissed the petition for lack of
standing under section 601(b)(2) of the Marriage Act and properly
granted custody to the father.
The Peterson 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 of the child upon the mother's death thus barring
the grandparents from having standing to seek custody. Here,
neither natural parent has died but respondent's voluntary
relinquishment of parental rights is analogous to the death of the
mother in Peterson. Here, as in Peterson, the father has been
vigorous in exercising his visitation and in proceeding without
delay to obtain custody when the mother gave up possession.
The Peterson court stated that to allow physical
possession to be the decisive factor on the standing issue would
encourage abductions and contradict statutory intent. Peterson,
112 Ill. 2d at 53-54, 491 N.E.2d at 1152-53. The Peterson opinion
explained that in In re Custody of Barokas, 109 Ill. App. 3d 536,
440 N.E.2d 1036 (1982), the appellate court had properly held that
a child remained in the physical custody of her mother although the
mother had placed the child in the temporary care of the child's
adult sister who had turned the child over, without the mother's
permission, to a third party. The opinion further explained that,
on the other hand, in In re Custody of Menconi, 117 Ill. App. 3d
394, 453 N.E.2d 835 (1983), the appellate court had properly held
that, in view of the voluntary transfer of possession and its
extended duration, a father had indefinitely relinquished physical
custody of his child when, after the mother's death, the paternal
grandparents had cared for the child at the father's request for 6«
years.
The decision of the circuit court here is also supported
by the decision in Kirchner. There, the father was abroad when the
child was born and was told that the child died at birth but he
vigorously attempted to find out if that was true. Upon learning
of the existence of the child some two months after its birth, the
father proceeded to assert his legal rights. In the meantime, he
had married the mother. The child lived with the couple seeking
adoption for over two years before the case reached the supreme
court. In deciding the couple lacked standing under section
601(b)(2) of the Marriage Act, the supreme court first explained
the constitutional rights of a parent, including unwed fathers who
attempt to live up to their responsibilities. The United States
Supreme Court cases beginning with Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), were listed.
The Kirchner court then explained that the "superior"
right of the natural parent to the care, custody, and control of
his child is the law of the land and is also embodied in Illinois
statutory law. Kirchner, 164 Ill. 2d at 490, 649 N.E.2d at 334.
Peterson, Menconi, and Barokas were cited. The court then stated
that because section 601(b)(2) of the Marriage Act permits the
vesting of custody of a child in a nonparent without showing the
consent or unfitness of its parents, it should be interpreted
narrowly. The court explained that "physical custody" requires
more than physical possession. Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335. The court noted the father had neither consented to
placement of the child with those seeking adoption nor participated
in it and that the conduct of the mother in that respect was not
binding on him. Thus, the court concluded that "section 601(b)(2)
cannot be invoked as against [the father] in the instant case
because he has never voluntarily relinquished his right to the
care, custody and control of his child" but had "exhibited sincere
and vigorous interest in his child." Kirchner, 164 Ill. 2d at 493-
94, 649 N.E.2d at 336.
The same could be said of the petitioner here. Kirchner
is analogous to this case in that in both cases the child never
lived with the father claiming "physical custody" but in each case
the father has acted to protect his interest and to establish his
relationship with the child. In neither case had the father been
declared the father of the child when the child was placed with the
persons seeking adoption. The diligence of petitioner here was
greater than that of the father in Kirchner in that the father here
brought suit for a declaration of paternity before the child was
born and was available when the child was born and was in much
better contact with the mother at that time. The Gingers were more
straightforward than the persons seeking adoption in Kirchner but
they apparently did take possession of the child without having any
contact with the father to determine his desires.
We recognize that even after Peterson the death of one
parent does not necessarily automatically vest "physical custody"
in the surviving parent. Nicholas, 170 Ill. App. 3d at 178, 524 N.E.2d at 733; In re Custody of McCarthy, 157 Ill. App. 3d 377,
383, 510 N.E.2d 555, 558 (1987). By the same token, the surrender
of the "physical custody" by one parent possessing custody does not
necessarily vest "physical custody" in the other parent. However,
no cases have refuted the holdings in Peterson and Kirchner that
when fathers in the position of petitioner here have acted as he
and the father in Kirchner acted, their rights are protected under
section 601(b)(2) of the Marriage Act. Because of the similarity
of the situation of the father here and that in Kirchner, we need
not attempt the hazardous task of attempting to set forth detailed
standards in regard to when the conduct of a father of a child born
out of wedlock results in a forfeiture of his rights of custody.
The Gingers present a thoughtful argument that allowing
them to intervene and present a case for their custody under the
theory of Townsend would be a better way to handle this situation.
In Townsend, an action for custody was brought by a father of a
daughter born out of wedlock against a nonparent who had physical
possession of the child. At that time, no statute clearly governed
the case and the supreme court concluded that the appropriate
procedure there was for the trial court to consider the question of
custody on the basis of the best interests of the child but with a
rebuttable presumption in favor of the natural rights of the
father. Townsend, 86 Ill. 2d at 514-15, 427 N.E.2d at 1238.
This procedure is similar to that which this court
prescribed in In re Marriage of Roberts, 271 Ill. App. 3d 972, 649 N.E.2d 1344 (1995), but there the custody dispute was between a
husband, who was later found not to be the biological father of a
child, and a wife, who was the mother of the child. Section
601(b)(2) of the Marriage Act was deemed inapplicable because the
husband was presumably the father of the child when the case
started. The difficulty with considering that procedure here is
that it is very much like the procedure suggested by Justice Miller
in his dissent in Kirchner and necessarily rejected by the
majority. Kirchner, 164 Ill. 2d at 508-09, 649 N.E.2d at 342-43.
Notably, after the decision in Doe, amendment was made to
section 20(b) of the Adoption Act (Pub. Act 88-550, 975, eff. July
3, 1994 (1994 Ill. Laws 368, 411)) to provide that after an
adoption is vacated or a petition for adoption is denied, the court
is to hold a prompt hearing in regard to the temporary and
permanent custody of the child "pursuant to Part VI of [the
Marriage Act]" with the child, the parents whose rights have not
been terminated and "other parties who have been granted leave to
intervene" as parties. 750 ILCS 50/20(b) (West 1994). The
question of the application of section 601(b)(2) of the Marriage
Act to those proceedings is not entirely clear.
One other contention of the Gingers must be briefly
considered. On November 30, 1994, the circuit court allowed their
petition for leave to intervene. Respondent sought leave to appeal
that order to this court and we denied it. In March 1995, after
our mandate issued, respondent filed a motion for reconsideration
of the order allowing intervention and the circuit court allowed
that motion. The Gingers maintain that the court lacked
jurisdiction to reconsider that order because more than 30 days had
passed since its entry. This contention has no merit. The order
denying leave to intervene was not final as to all claims and all
parties. Under the provisions of Supreme Court Rule 304(a), absent
a finding required by that rule, such an order "is subject to
revision at any time before the entry of a judgment adjudicating
all the claims, rights, and liabilities of all the parties." 155
Ill. 2d R. 304(a).
For the foregoing reasons, the judgment of the circuit
court is affirmed.
Affirmed.
COOK, P.J., specially concurs.
KNECHT, J., dissents.
PRESIDING JUSTICE COOK, specially concurring:
I agree with Justice Miller's dissent in Kirchner (164 Ill. 2d at 502-09, 649 N.E.2d at 340-43). A standing requirement
is useful as a rough filter to prevent the filing of cases by those
who have no legitimate interest in the care of the child, but is
poorly suited to resolving real disputes between those who have
such an interest. A standing requirement is unnecessary to protect
the natural rights of the parent. Even where the court decides the
case under the best-interest-of-the-child standard, the court will
still give considerable weight to the right of the natural parent.
The worst consequence of finding standing is that the court will
hear evidence before deciding the case. Nevertheless, the majority
opinion in Kirchner is binding upon us.
There is some justification for treating nonparents who
wish to intervene in an existing case differently, for purposes of
standing, than those who wish to file an original action. Section
601(b) of the Marriage Act provides that it applies when a child
custody proceeding is "commenced." 750 ILCS 5/601(b) (West 1992).
Section 601(c) provides that, "[t]he court, upon showing of good
cause, may permit intervention of other interested parties." 750
ILCS 5/601(c) (West 1992). The comments to the section of the
uniform act on which section 601 is based state:
"Once a custody proceeding is commenced, the
court should be able to hear the views of all
interested persons; [section 601(c) of the
Marriage Act] therefore authorizes the judge
to permit intervention by relatives who would
not have been allowed to commence an action."
Uniform Marriage and Divorce Act 401, Com-
ment at 550-51, 9A U.L.A. (1987).
The cases, however, have not recognized that distinction. See,
e.g., In re Marriage of Nicholas, 170 Ill. App. 3d 171, 176, 524 N.E.2d 728, 731 (1988). JUSTICE KNECHT, dissenting:
I respectfully dissent. The majority believes the
Kirchner decision is controlling (164 Ill. 2d 468, 649 N.E.2d 324).
I disagree. Kirchner involved an invalid adoption and allegations
the adoptive parents deceived the biological father. The case
before us involves a parentage proceeding and the request of F.Y.'s
present caregivers to intervene in that proceeding. The majority
emphasizes the similarity between this case and Kirchner. Yet, in
this case, the child's mother voluntarily transferred F.Y. to the
respondents, consented to the adoption of the child, and
respondents promptly served notice on Brumfield of the adoption
proceeding.
Justice Miller's dissent in Kirchner (164 Ill. 2d at 505,
649 N.E.2d at 341) makes several excellent points which, by analo-
gy, are applicable in the case before us. Brumfield was not de-
clared the biological father of F.Y. until after the child's mother
voluntarily relinquished her parental rights and lawfully placed
the child with a family she believed would give her daughter the
care and love she deserved. The respondents filed an adoption
petition and gave notice to the putative father. The Gingers were
lawful custodians of F.Y. at that point. Brumfield had not yet
been declared to be the child's father. He had not yet exercised
custodial rights. Brief visits and the previous filing of a
parentage petition did not give him the immediate and exclusive
custody of F.Y. when Yard executed an irrevocable consent for
adoption.
As noted by Justice Cook in his special concurrence,
standing is a rough filter to screen out individuals who have no
lawful or legitimate interest in a child. By what stretch of law,
logic, fact or policy can it be said the Gingers do not have a
sincere, legitimate and lawful interest in the welfare and custody
of F.Y.?
The voluntary relinquishment requirement which has been
engrafted by judicial decisions to section 601(b)(2) of the Mar-
riage Act is not applicable here because Brumfield never had physi-
cal custody of F.Y. to relinquish. "The requirement of a voluntary
relinquishment of the child by his or her biological parents is in-
tended to discourage child abductions and other illicit self-help
measures that would otherwise grant a third party standing pursuant
to the literal terms of section 601(b)(2)." Kirchner, 164 Ill. 2d
at 505, 649 N.E.2d at 341 (Miller, J., dissenting). The Gingers
did not wrest control of F.Y. from Brumfield nor did Brumfield
relinquish to them what he did not have. Brumfield had nothing to
relinquish, and the Gingers have acted in good faith. The Gingers
are not members of a roving band of child snatchers. They are not
grasping relatives who seek to manage F.Y.'s estate. They did not
abduct her. They did not engage in deceitful measures to prevent
Brumfield from knowing they sought to adopt her. They have law-
fully cared for and nurtured F.Y. since she was six months old and
no reason exists to use an artificial and narrow interpretation of
standing to prevent them from participating in the parentage
proceeding and seeking custody of F.Y. They have standing--not
because of "mere possession," but because of their good-faith
conduct and their lawful exercise of authority and control over
F.Y.'s welfare for almost 1« years before the trial court concluded
it was required to deny their intervention.
Just as physical custody requires more than mere pos-
session, so too does custody require more than mere biology.
Fatherhood requires more than biology. Nurturing caregivers who
are lawfully exercising control over a child cannot be dismissed as
interlopers who have no interest in the future welfare of the
child. "[B]iological relationships are not exclusive determination
of the existence of a family." Smith v. Organization of Foster
Families for Equality & Reform, 431 U.S. 816, 843, 53 L. Ed. 2d 14,
34, 97 S. Ct. 2094, 2109 (1977).
Justice Cook in his special concurrence also notes the
Uniform Marriage and Divorce Act, on which section 601(b)(2) is
based, provides that relatives who would not have been permitted to
commence a custody proceeding may nonetheless be permitted to
intervene in an existing case. The wisdom of such an approach is
contained in the true balance it achieves. Persons who have a
prior relationship with a child and who have a legitimate interest
in the child's welfare may be permitted to intervene, but a
presumption in favor of the biological parent's claim will remain.
This has the advantage of addressing both the child's welfare and
the parent's interests instead of using a narrow view of standing
to defeat a meaningful examination of the child's best interest.
The child's best interest control when a custody dispute
arises between natural parents. Yet, when such a dispute arises
between a parent and a nonparent, we use a narrow interpretation of
the standing requirement coupled with the superior right of a
parent to the care and control of a child to prevent any inquiry
into the child's welfare. In the face of the assertion a parent
has a constitutional right to the custody of his child, perhaps we
should ask why this right is superior to the child's interest in
having the court carefully examine what is in the child's best
interest. Why are they not equal claims? I am confident a more
flexible approach to standing will not result in a plethora of
neighbors and distant relatives snatching children from their
parents and attempting to assert legal rights to their custody. I
am also confident the trial courts can readily determine those
persons who have a legitimate interest in the welfare of a child
and permit them to participate in custody proceedings while at the
same time giving appropriate deference to the parents' interests.
Such an approach will not promote abductions or unilateral removals
of children from their parents by interlopers or the state. It
will promote the best interests of children.
The narrow application of standing in a case of this
sort, while not intentional, unfortunately gives support to the
notion that a child is the property of his parent. Melanie Sloan,
in a thoughtful and provocative analysis of the infamous Baby
Jessica case (In re Baby Girl Clausen, 502 N.W.2d 649 (Mich.
1993)), the Parental Kidnapping Prevention Act (28 U.S.C.A. 1738A
(1988) (Prevention Act)), and other cases, posits that a child's
right to live in a secure and loving environment is sometimes
unfortunately subordinated to a parent's ownership interest in the
child. M. Sloan, No More Baby Jessicas: Proposed Revisions to the
Parental Kidnapping Prevention Act, 12 Yale L. & Pol'y Rev. 355
(1994) (hereinafter Sloan). The parental rights doctrine ultimate-
ly treats the child as a parent's property. That article proposes
changes in the Prevention Act which parallel the concerns raised by
Justice Miller in the Kirchner dissent and the approach taken by
the Illinois legislature in the 1994 amendment to the Adoption Act
(750 ILCS 50/20(b) (West 1994)). Best interest hearings may well
be necessary before removing a child from the custody of adoptive
parents and returning the child to biological parents.
Because parenthood is a social, psychological, and in-
tentional status as much as it is a biological one, courts should
have a flexible interpretation of standing to permit those who have
social and psychological ties to a child and who have chosen to
accept the responsibility of parenting, and actively intend to meet
that responsibility, to participate in court proceedings to
determine custody. Sloan at 375. This approach places as much
value on the child's welfare as it does on the parent's interests.
Requiring a heretofore absent parent to articulate his claim to his
daughter based on her welfare, rather than his own, expresses a
genuine interest in the child as a person rather than a possession.
See Sloan at 382. It also strikes a balance that cannot be
achieved when the most significant people in the child's life are
stopped at the courtroom door by a rule that serves the best
interests of no one.