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grandparents gain custody of grandchild illinois family law

Grandparents Gain Custody and Trump the Rights of Biological Parents

Categorized as Child Custody, Grandparents Rights

The petitioners, in this case, were the grandparents of the child in question.  The grandparents gain custody of their granddaughter after filing a petition to establish custody.  In that petition, they alleged that they’d been caring for their granddaughter since she was an infant.  The biological mother fought back, stating in her court pleadings that the grandparents did not have “standing.”

For those of you that don’t know, a lawsuit cannot be started by a person unless they have standing.  Your neighbors cannot bring a petition to take custody of your daughter because they are better parents, have more money, or could give your daughter everything that she wants in life.  They might be able to demonstrate that they could provide better for your child, but without standing, no one can even bring the petition to ask for custody of your daughter.  

Young v. Herman – Grandparents Gain Custody

Ordinarily, parents always come first and have an absolute right to their child.  Parents are allowed to keep their children before anyone else is allowed to have them.  In this case though, Crystal Young and Michael Young (the grandparents) v. Kourtney Herman, and David Herron, the judge said that the grandparents did have standing, and a trial was had as to the child’s best interests.  Was it in the child’s best interests to be raised by her parents or by her grandparents?

At trial, the court held that the grandparents should have primary parental decision making.  

The Youngs claimed that their granddaughter had been in their “physical care, custody, and control” since she was two months old. The Youngs complained in their petition that the biological mother, Kourtney, had recently removed their granddaughter from their care.  The Youngs argued that it was in their granddaughter’s best interest to stay with them.  

Did the Grandparents Have Standing to File for Custody?

Kourtney filed a motion to dismiss their complaint. She was the child’s mother and so long as she was there to take her daughter, no one (except the biological father) should be in line to take custody before her.  In essence, the grandparents lacked standing.

The trial court determined that “there was no challenge to standing filed during the time of pleadings.” As a result, the court concluded: “that issue would be waived.” Nonetheless, the Appellate Court went on to address the merits of the standing issue. The court stated the following about standing:

“As it relates to the issue of standing as to whether or not a parent had custody of this child at the initiation of this proceeding, the evidence in this case I think is, is extensive. And the evidence, in this case, I believe, demonstrates that [J.H.] was removed from the Youngs’ ‘custody’ a short time prior to the filing of these proceedings. And that I don’t believe because [J.H.] was in the physical custody of her biological mother, [Kourtney], at the time of the filling of the proceedings would prohibit the [Youngs] to file this petition, because she was, in essence, yanked from their custody which caused them to initiate these proceedings to seek her return.”

Grandparents Were Primary Caregiver for Granddaughter

The trial court also found that Crystal became the primary caregiver for her granddaughter and that Kourtney surrendered that duty to Crystal. And that the surrender was an indefinite surrender. The trial court found further that the Youngs provided their granddaughter with medical care, oversaw her education, provided for her extracurricular activities, and fostered her spiritual life. In addition, the Youngs provided day-to-day care. The court was not persuaded that Kourtney had “physical custody” of her daughter when the petition for custody was filed.

The trial court concluded that it was in the child’s best interests for parental responsibilities to return to the status quo prior to Kourtney’s removing her daughter from the Youngs’ care. That is, the Youngs should have primary decision-making responsibility, with parenting time awarded to Kourtney in the amount of every other weekend and one weeknight per week.

Kourtney appealed the trial court’s ruling.  Kourtney argued on appeal that the trial court was wrong when it denied her motion to dismiss and it also erred when it found that it was in her daughter’s best interest to be raised by her grandparents.  

Kourtney first argued that the grandparents lacked standing.  

Section 601.2(b)(3) of the Dissolution Act provides that a proceeding for allocation of decision-making responsibilities (formerly known as “custody”) of a child may be commenced in the following manner by a person who is not the child’s parent:  “by a person other than a parent, by filing a petition for allocation of parental responsibilities in the county in which the child is permanently resident or found, but only if he or she is not in the physical custody of one of his or her parents.” 750 ILCS 5/601.2(b)(3) (West 2016).

Thus, the appropriateness of the Youngs’ petition for custody turns on whether their granddaughter was in the “physical custody” of Kourtney when the present action was commenced.  Kourtney argued that her child was in her care and not the grandparents, so no standing could exist.  But the court found that her daughter was in the grandparents’ care, and it was only once the litigation was about to start, did the mother take her daughter from the grandparents.

Illinois Doctrine of Standing

In Illinois, the doctrine of standing “assures that issues are raised only by those parties with a real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221, 720 N.E.2d 1034, 1039 (1999). To have standing, a party must have “some injury in fact to a legally cognizable interest.” Id. “Lack of standing is an affirmative defense, which the defendant bears the burden to plead and prove.” Id. at 224. As such, lack of standing is as an affirmative matter properly raised in a section 2-619(a)(9) motion to dismiss. 

What does “physical custody” mean?  Section 601.2 of the Dissolution Act does not define “physical custody.” However, extensive case law exists interpreting “physical custody” in the context of section 601 of the Dissolution Act. Resolving the issue of physical custody “should not turn on who is in physical possession, so to speak, of the child at the moment of filing the petition for custody. 

Some cases have held that to establish physical custody the nonparent must show that the biological parents ” ‘voluntarily and indefinitely relinquished custody of the child.  In addition, when determining whether a parent had physical custody, a court should consider factors including the following: “(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 A.W.J., 316 Ill. App. 3d 91, 96, 736 N.E.2d 716, 721 (2000).

The Appellate court found that the minor child was not in Kourtney’s physical custody.  Many witnesses testified as to the day to day care of the minor child and the trial court found that the Youngs were the child’s primary custodian, no Kourtney.  The court went on to further say that  Kourtney voluntarily relinquished her parenting responsibilities to the Youngs.  

Under the three-factor test provided by A.W.J., the trial court’s determination that the child was not in Kourtney’s physical custody.  The trial court found that the Youngs were responsible for the child’s day-to-day care, medical care, education, extracurricular activities, and social life. The court found that Kourtney voluntarily requested that the Youngs help parent her child and that they had done so for the past eight years.  

Determination of the Best Interests of the Child

When the court made the determination that the Youngs had standing, the court next went to the child’s best interests.    The court evaluates the best interests of the child by evaluating 

“(1) the wishes of the child;

(2) the child’s adjustment to his or her home, school, and community;

(3) the mental and physical health of all individuals involved;

(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

(5) the level of each parent’s participation in past significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

(7) the wishes of the parents;

(8) the child’s needs;

(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on decision-making is appropriate under Section 603.10;

(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical violence by the child’s parent directed against the child;

(13) the occurrence of abuse against the child or other member of the child’s household;

(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

(15) any other factor that the court expressly finds to be relevant.” 

Of these 15 factors, no one factor is more important than the other.  Some factors exist in a case and others do not.  But these 15 factors are a guide for the trial judge when a decision has to be made about a child’s best interest.

The Appellate Court found that the trial court did not make an error in finding that the child’s best interests were had by leaving the child with her grandparents.

Warning to Grandparents Raising Grandchildren for Extended Periods of Time

Grandparents, take note.  If you are raising your grandchildren for extended periods of time (a parent might be in jail or just unavailable), consider getting a custody order.  That way you won’t be fighting later after the parent comes back years later. The child deserves some permanency and if you are the only one who can give the child that, make it legal to avoid a fight later on. 


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