Timmons v. Ronald L.S.

Docket No. 100081.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

In re R.L.S., a Minor (Marsha Timmons, on Behalf of R.L.S.,
Appellee, v. Ronald L.S., Appellant).

Opinion filed February 2, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices McMorrow, Freeman, Fitzgerald, Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.

OPINION

At issue in this appeal is the standing requirement for
guardianship petitioners under article 11 of the Probate Act of 1975
(Probate Act) (755 ILCS 5/11B1 et seq. (West 2004)).

BACKGROUND
The minor, R.L.S., is the daughter of Karyn S. and respondent,
Ronald S. On December 15, 2002, Karyn died in an automobile
accident. At the time of her death, Karyn and respondent were
separated. Karyn and R.L.S. had been living with Karyn=s maternal
grandmother, Alma Meyers. Respondent resided in Florida.
Following Karyn=s death, R.L.S.=s maternal grandparents, Ronald and
Marsha Timmons (petitioners), filed a petition in the circuit court of
La Salle County to be appointed R.L.S.=s temporary and permanent
guardians. The trial court entered an ex parte order appointing
petitioners temporary guardians of R.L.S. and set the matter for a
hearing.
Respondent moved to dismiss the petition, arguing that
petitioners lacked standing to bring a petition for guardianship. The
trial court denied the motion. The court relied on section 11B5(b) of
the Probate Act (755 ILCS 5/11B5(b) (West 2004)). The court noted
that, under this provision, petitioners could establish standing if they
could rebut the presumption that respondent was willing and able to
make and carry out day-to-day child care decisions concerning R.L.S.
Following an evidentiary hearing and written arguments by the
parties, the court concluded that respondent was correct that
petitioners lacked standing. In a written order dismissing the
guardianship petition, the court stated that, initially, it had been under
the impression that the sole standing requirement to petition for
guardianship was set forth in section 11B5(b). The court later
determined, however, that it was bound by a line of appellate court
cases, beginning with In re Person & Estate of Newsome, 173 Ill.
App. 3d 376 (1988), which held that the standing requirement for
nonparents who petition for custody under the Illinois Marriage and
Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq.
(West 2004)) should be read into the Probate Act. The standing
requirement for nonparents under the Marriage Act is provided in
section 601(b)(2), which states that a child custody proceeding may
be commenced by a person other than a parent Aonly if [the child] is
not in the physical custody of one of his parents.@ 750 ILCS
5/601(b)(2) (West 2004). The trial court noted that this language has
been interpreted to mean that the nonparent must show that the parent
has voluntarily and indefinitely relinquished custody of the child.
See, e.g., In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995).
Because respondent had not voluntarily and indefinitely relinquished
custody of R.L.S., the trial court concluded that petitioners lacked
standing and that the petition for guardianship had to be dismissed.
Petitioners appealed, and the appellate court reversed. 354 Ill.
App. 3d 462. The appellate court held that the sole standing
requirement for guardianship petitioners is stated in section 11B5(b)
of the Probate Act. The court specifically rejected Newsome=s
analysis. Newsome based its decision on the incorporation of the

-2-
superior rights doctrine into both the Marriage Act and the Probate
Act. The superior rights doctrine is a presumption that parents have
the superior right to care, custody, and control of their children. In re
Custody of Peterson, 112 Ill. 2d 48, 51 (1986). Newsome reasoned
that, because both the Marriage Act and the Probate Act incorporate
the superior rights doctrine, petitioners under the Probate Act should
have to meet the standing requirement of the Marriage Act.
Newsome, 173 Ill. App. 3d at 379. In the present case, the appellate
court rejected this analysis, holding that Ahow the superior rights
doctrine is effectuated in one act is irrelevant to application of the
same doctrine in another.@ 354 Ill. App. 3d at 466. The appellate
court remanded the cause to the trial court to resolve the standing
question under section 11B5(b) of the Probate Act. 354 Ill. App. 3d at
468. We allowed respondent=s petition for leave to appeal. 177 Ill. 2d
R. 315.

ANALYSIS
The primary objective in construing a statute is to give effect to
the legislature=s intent, presuming the legislature did not intend to
create absurd, inconvenient or unjust results. In re Madison H., 215
Ill. 2d 364, 372 (2005). Accordingly, courts should consider the
statute in its entirety, keeping in mind the subject it addresses and the
legislature=s apparent objective in enacting it. People v. Davis, 199
Ill. 2d 130, 135 (2002). The best indication of legislative intent is the
statutory language, given its plain and ordinary meaning. Illinois
Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). When the
statutory language is clear, it must be given effect without resort to
other tools of interpretation. In re Marriage of Rogers, 213 Ill. 2d
129, 136 (2004). Moreover, this court has a duty to construe a statute
in a manner that upholds its validity and constitutionality if it
reasonably can be done. People v. Malchow, 193 Ill. 2d 413, 418
(2000). Issues of statutory construction are reviewed de novo. In re
Michelle J., 209 Ill. 2d 428, 434 (2004).
Respondent argues that the appellate court erred in failing to
follow other appellate court decisions holding that the standing
requirement of the Marriage Act must be read into the Probate Act.
See, e.g., Newsome, 173 Ill. App. 3d at 379; In re Marriage of
Haslett, 257 Ill. App. 3d 999, 1006 (1994); In re Person & Estate of

-3-
Barnhart, 232 Ill. App. 3d 317, 320-21 (1992). We disagree. As
petitioners point out, the rule that petitioners under the Probate Act
must satisfy the standing requirement of the Marriage Act was first
stated in Newsome, a case decided before the legislature added a
standing requirement for guardianship petitioners to the Probate Act.
The reasoning of Newsome was as follows. The superior rights
doctrine, which holds that parents have the superior right to care,
custody, and control of their children, is incorporated in both the
Marriage Act and the Probate Act. The Probate Act recognizes the
doctrine in section 11B7, which provides:
AIf both parents of a minor are living and are competent to
transact their own business and are fit persons, they are
entitled to the custody of the person of the minor and the
direction of his education. If one parent is dead and the
surviving parent is competent to transact his own business
and is a fit person, he is similarly entitled. The parents have
equal powers, rights and duties concerning the minor. If the
parents live apart, the court for good reason may award the
custody and education of the minor to either parent or to some
other person.@ 755 ILCS 5/11B7 (West 2004).
The superior rights doctrine is also recognized in section 601(b)(2) of
the Marriage Act. Section 601, which is entitled AJurisdiction;
Commencement of Proceeding,@ provides in subsection (b)(2) that a
custody proceeding may be commenced by a nonparent Aby 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.@ 1 750 ILCS 5/601(b)(2) (West 2004).
This court has interpreted this section as a standing requirement for
nonparents. Peterson, 112 Ill. 2d at 52. That is, for a nonparent to
have standing to seek custody under the Marriage Act, the nonparent
must first show that the child is not in the physical custody of one of

1
In Siegel v. Siegel, 84 Ill. 2d 212, 220-21 (1981), this court explained
that the term Ajurisdiction@ in a previous version of section 601 did not refer
to subject matter jurisdiction in the traditional sense, which is conferred by
the Illinois Constitution, but rather to a limitation on the court=s exercise of
its existing jurisdiction.

-4-
his parents. 2 Newsome held that, because the Marriage Act and the
Probate Act both incorporate the superior rights doctrine, a petitioner
under the Probate Act must also meet the standing requirement of the
Marriage Act. Newsome, 173 Ill. App. 3d at 379.
After Newsome was decided, the legislature amended section
11B5(b) of the Probate Act to add a standing requirement. Section
11B5(b) now provides as follows:
AThe court lacks jurisdiction to proceed on a petition for
the appointment of a guardian of a minor if (i) the minor has a
living parent, adoptive parent or adjudicated parent, whose
parental rights have not been terminated, whose whereabouts
are known, and who is willing and able to make and carry out
day-to-day child care decisions concerning the minor, unless
the parent or parents consent to the appointment or, after
receiving notice of the hearing under Section 11B10.1, fail to
object to the appointment at the hearing on the petition or (ii)
there is a guardian for the minor appointed by a court of
competent jurisdiction. There shall be a rebuttable
presumption that a parent of a minor is willing and able to
make and carry out day-to-day child care decisions
concerning the minor, but the presumption may be rebutted
by a preponderance of the evidence.@ 755 ILCS 5/11B5(b)
(West 2004).
In In re Estate of Johnson, 284 Ill. App. 3d 1080, 1090 (1996), the
appellate court, relying on this court=s case law interpreting section
601(b)(2) of the Marriage Act, interpreted this to be a standing
requirement for nonparents. The court determined that section

2
This court later clarified in In re A.W.J., 197 Ill. 2d 492, 496-97 (2001),
that, when used in this sense, Astanding@ does not have the traditional
meaning of a requirement that a litigant has a justiciable interest in a
controversy. Rather, it merely refers to a threshold issue that must be
determined before the court may proceed to a Abest interests@ determination.

-5-
11B5(b) was intended to prevent the circuit court from exercising
jurisdiction when the petitioner lacks standing. Johnson, 284 Ill. App.
3d at 1090. We agree with this interpretation. This court interpreted
the similar provision of section 601(b)(2) as a standing requirement
for nonparents (Peterson, 112 Ill. 2d at 52), but later clarified that,
when used in this sense, Astanding@ simply referred to a threshold
statutory requirement that had to be met before the court could
proceed to a decision on the merits (see A.W.J., 197 Ill. 2d at 496-97).
Thus, to have standing to proceed on a petition for custody under the
Marriage Act, a petitioner must show that the child is not in the
physical custody of one of his or her parents. 750 ILCS 5/601(b)(2)
(West 2004); Peterson, 112 Ill. 2d at 52. To have standing to proceed
on a petition for guardianship under the Probate Act, when the minor
has a parent whose whereabouts are known, the petitioner must rebut
the statutory presumption that the parent is Awilling and able to make
and carry out day-to-day child care decisions concerning the minor.@
755 ILCS 5/11B5(b) (West 2004); see Johnson, 284 Ill. App. 3d at
1091. It is presumed that, when enacting new legislation, the
legislature acts with full knowledge of previous judicial decisions
addressing the subject matter of that legislation. People v. Jones, 214
Ill. 2d 187, 199 (2005). By enacting a standing requirement for
guardianship petitioners after the courts had held that the proper
standing requirement was that stated in the Marriage Act, the
legislature made its intention clear. Regardless of whether Newsome
was correct when decided, it is clearly not correct now, as the
legislature has added a standing requirement to the Probate Act.
Respondent maintains, nevertheless, that the Newsome court=s
reading of the Probate Act is necessary to preserve the Act=s
constitutionality. Respondent contends that, unless guardianship
petitioners under the Probate Act are required to show that the child
is not in the physical custody of one of his parents, the Probate Act
violates the parents= due process rights.
Petitioners contend that respondent has waived any constitutional
arguments because he did not make them in the trial court or in the
appellate court and because he did not notify the Attorney General
pursuant to Supreme Court Rule 19 (134 Ill. 2d R. 19). We disagree.
Respondent won in the trial court and was the appellee in the
appellate court. A >Where the trial court is reversed by the Appellate
Court and the appellee in that court brings the case here for further

-6-
review, he may raise any questions properly presented by the record
to sustain the judgment of the trial court, even though those questions
were not raised or argued in the Appellate Court.= @ Dineen v. City of
Chicago, 125 Ill. 2d 248, 264 (1988), quoting Mueller v. Elm Park
Hotel Co., 391 Ill. 391, 399 (1945). Respondent had no reason to
raise the due process argument before now. In the trial court, he
argued that Newsome supplied the proper standing requirement, and
the trial court agreed with him. Respondent contends that, by
rejecting Newsome, the appellate court placed an unconstitutional
construction on the statute. We also do not believe that Rule 19
required respondent to notify the Attorney General of this argument.
Rule 19(a) requires a party to serve notice on the Attorney General
when the constitutionality of a statute is being challenged. 134 Ill. 2d
R. 19(a). The purpose of the notice is to allow the Attorney General
to intervene and defend the constitutionality of the challenged
provision. 134 Ill. 2d R. 19(c). Here, however, respondent is not
arguing that section 11B5(b) of the Probate Act is unconstitutional
and thus unenforceable. He is merely arguing that due process
requires reading this section in conjunction with section 601(b)(2) of
the Marriage Act and applying the latter to proceedings under both
the Probate Act and the Marriage Act. Under these circumstances, we
do not believe that respondent was required to notify the Attorney
General of this argument.
Respondent=s due process argument is based on Troxel v.
Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000)
(plurality op.). In Troxel, the Supreme Court considered a challenge
to a Washington statute that allowed any person to petition for
visitation rights A >at any time,= A and authorized the court to grant
visitation rights whenever A >visitation may serve the best interest of
the child.= @ Troxel, 530 U.S. at 60, 147 L. Ed. 2d at 53, 120 S. Ct. at
2057, quoting Wash. Rev. Code '26.10.160(3) (2005). The Supreme
Court affirmed the Washington Supreme Court=s determination that
the statute was unconstitutional. The Court based its decision on the
due process clause of the Fourteenth Amendment, which A >provides
heightened protection against government interference with certain
fundamental rights and liberty interests.= @ Troxel, 530 U.S. at 65, 147
L. Ed. 2d at 56, 120 S. Ct. at 2060, quoting Washington v.
Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct.
2258, 2267 (1997). The court stated that the liberty interest of parents

-7-
in the care, custody and control of their children is Aperhaps the oldest
of the fundamental liberty interests recognized by [the] Court.@
Troxel, 530 U.S. at 65, 147 L. Ed. 2d at 56, 120 S. Ct. at 2061. In
holding that the statute violated due process as applied to the case
before it, the Supreme Court identified two principal problems. First,
the statute was Abreathtakingly broad.@ Troxel, 530 U.S. at 67, 147 L.
Ed. 2d at 57, 120 S. Ct. at 2061. By allowing any person to petition
for visitation at any time, and allowing the court to grant visitation
rights whenever visitation may serve the best interest of the child, the
statute subjected any visitation decision by a parent to state court
review. Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57, 120 S. Ct. at
2061. The statute accorded no deference to a parent=s determination
of whether visitation was in the child=s best interests, instead leaving
the matter entirely in the judge=s hands.
Second, there had been no court finding, or even an allegation,
that the custodial parent was unfit. The Court noted the presumption
that fit parents act in the best interests of their children. Troxel, 530
U.S. at 68, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061. The Court
explained that, Aso long as a parent adequately cares for his or her
children (i.e., is fit), there will normally be no reason for the State to
inject itself into the private realm of the family to further question the
ability of that parent to make the best decisions concerning the
rearing of that parent=s children.@ Troxel, 530 U.S. at 68-69, 147 L.
Ed. 2d at 58, 120 S. Ct. at 2061. The Court held that if a fit parent=s
parenting decisions were going to be subject to judicial review, the
courts must accord at least some special weight to the parent=s own
determination. Troxel, 530 U.S. at 70, 147 L. Ed. 2d at 59, 120 S. Ct.
at 2061. This court later relied on Troxel to invalidate an Illinois
statute that allowed a court to award visitation to grandparents,
great-grandparents, or the sibling of a minor child if the court
determined that it was in the best interests and welfare of the child.
Wickham v. Byrne, 199 Ill. 2d 309 (2002). This court found that, like
the statute at issue in Troxel, the Illinois statute placed parents on
equal footing with those seeking visitation and contravened the
presumption that parents are fit and act in the best interests of their
children. In other words, the statute allowed a trial judge to second-
guess a fit parent=s decisions as to what was in a child=s best interests.
Wickham, 199 Ill. 2d at 320.
We disagree with respondent=s assertion that the Probate Act,

-8-
when not read in conjunction with section 601(b)(2) of the Marriage
Act, suffers from the same infirmities identified by the courts in
Troxel and Wickham. Respondent argues that, just as the Washington
statute allowed Aany person@ to petition for visitation at Aany time,@
the Probate Act allows any qualified nonfelon adult (755 ILCS
5/11B3(a) (West 2004)) to commence a guardianship proceeding
simply by filing a petition (755 ILCS 5/11B5(a) (West 2004)).
Respondent contends that the problem is cured if Newsome is
followed and the court is required to dismiss a guardianship petition
if the child is in the physical custody of one of his parents.
While it is true that the Probate Act places only minimum limits
on who may file a petition for guardianship, the Probate Act does not
suffer from the first infirmity identified by the Supreme Court in
Troxel. The problem with the Aany person@ at Aany time@ language
considered in Troxel was that it allowed any visitation decision by a
fit parent to be subject to state court review. Once a visitation petition
was filed, the statute allowed the matter to go directly to a best-
interests hearing before a judge, and the parent=s determination of the
child=s best interests would be given no deference at the hearing.
Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57-58, 120 S. Ct. at 2061. By
contrast, the Probate Act prevents the court from proceeding to the
merits of the guardianship petition if the child Ahas a living parent,
adoptive parent or adjudicated parent, whose parental rights have not
been terminated, whose whereabouts are known, and who is willing
and able to make and carry out day-to-day child care decisions
concerning the minor, unless the parent or parents consent to the
appointment or, after receiving notice of the hearing under Section
11B10.1, fail to object to the appointment at the hearing on the
petition.@ 755 ILCS 5/11B5(b) (West 2004). Moreover, the Probate
Act presumes that a parent is willing and able to carry out day-to-day
child care decisions, and this presumption may be overcome only by
a preponderance of the evidence. 755 ILCS 5/11B5(b) (West 2004).
Thus, a person who petitioned for visitation under the Washington
statute would be given a hearing on merits, and the determination of
the child=s best interests would be made without any deference to the
parents= decision. By contrast, a person who files a petition for
guardianship under the Probate Act will have the petition dismissed if
the child has a parent who is willing and able to carry out day-to-day
child care decisions. State interference with fundamental parental

-9-
childrearing rights is justified in limited instances to protect the
health, safety, and welfare of children. Wickham, 199 Ill. 2d at 317.
By allowing a guardianship petition to proceed to a hearing on the
merits over the wishes of a parent only when the parent has been
established to be unwilling or unable to carry out day-to-day
childcare decisions, the Probate Act respects the superior rights of
parents while also insuring to protect the health, safety, and welfare
of children. We fail to see how the Probate Act suffers the same
infirmity as the statute at issue in Troxel. 3
The second major problem identified by the Supreme Court in
Troxel was the manner in which the statute was applied to a parent
who had not been found unfit. Fit parents are presumed to act in the
best interests of their children, but the trial court in Troxel applied the
opposite presumption. It required a parent to disprove that visitation
with the petitioners was in the child=s best interests. By applying the

3
At oral argument, respondent contended that the problem with the
legislature=s use of the word Aable@ in section 11B5(b) is that Aable@ is
susceptible to more than one meaning. It could mean Apossessed of needed
powers *** or of needed resources *** to accomplish an objective@
(Webster=s Third New International Dictionary 4 (1993)), or it could mean
something more akin to Amarked by intelligence, knowledge, skill, or
competence@ (Webster=s Third New International Dictionary 4 (1993)). We
believe that the legislature clearly meant the former. Applying the latter
definition would raise serious constitutional questions. Moreover, the
legislature placed the term Aable@ after the noun that it modifies, which
generally signifies that the former meaning is intended. See Webster=s Third
New International Dictionary 4 (1993).

-10-
statute in this manner, the trial court Afailed to provide any protection
for Granville=s fundamental constitutional right to make decisions
concerning the rearing of her own daughters.@ Troxel, 530 U.S. at 70,
147 L. Ed. 2d at 59, 120 S. Ct. at 2062.
Such a problem should never arise in a guardianship proceeding
under the Probate Act. Section 11B7 specifically protects the custody
rights of fit parents. The first sentence of this section provides that if
both parents are living, fit, and competent to transact their own
business, they are entitled to custody. The next sentence provides that
if one parent is deceased, then the surviving parent, if fit and
competent to transact his or her own business, is entitled to custody.
Respondent, as R.L.S.=s surviving parent, is thus entitled to custody if
he is a fit person and competent to transact his own business.
Some ambiguity is created by the final sentence of section 11B7.
This sentence provides that, A[i]f the parents live apart, the court for
good reason may award the custody and education of the minor to
either parent or to some other person.@ Respondent is concerned that
this sentence means that, because he was living apart from the mother
when she died, the court may grant guardianship to some other
person simply on a showing of Agood reason,@ and that this sentence
trumps the previous sentence, which would allow him to have
custody if he is fit. It appears that the trial court and the appellate
court also interpreted the statute in this manner. At the beginning of
the hearing, the trial court stated that, Aunder the facts of this case, the
parents here of this minor child lived separate and apart. And under
Section 11B7, if this were to be considered a custodial case as
opposed to a guardianship case, I would have the right to proceed
because they were living apart and make a determination based upon
the evidence for good reason in awarding custody of the child.@ When
describing the protections afforded by section 11B7, the appellate
court stated that ASection 11B7=s requirement that the parent be found
unfit or, if the parents lived apart, that good cause exists to award
custody to some other person provides sufficient protection for
parents= superior right to the custody and control of their children
within the context of proceedings pursuant to the Probate Act.@
(Emphasis added.) 354 Ill. App. 3d at 467.
We disagree with this interpretation. The final sentence of section
11B7 cannot be read in isolation from the previous sentences. See

-11-
Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000) (statutes should be
evaluated as a whole, with each provision construed in connection
with every other provision). We agree with the interpretation given
this section by the appellate court in In re Estate of Brown, 207 Ill.
App. 3d 139 (1990). In rejecting an argument that section 11B7
allowed children to be more easily removed from parents who live
apart, the court interpreted the Agood reason@ in the last sentence as
referring to a finding of unfitness. Brown, 207 Ill. App. 3d at 144.
Petitioners point out that the wording of this final sentence was
necessary to fix a problem of draftsmanship. If the final sentence
merely stated that if the parents live apart, the court may award
custody to either parent, it might be interpreted as meaning that the
court could award custody only to one of the parents. If neither parent
is fit, however, the court obviously has the right to award custody to
some other person. It is implicit in the first two sentences of section
11B7 that the court may award custody to some other person if the
child lacks a fit parent. Further, in a situation in which both parents
are fit and live apart, the court cannot rely on the superior rights
doctrine because both parents start out on equal footing. In re
Custody of Townsend, 86 Ill. 2d 502, 509 (1981). In such a situation,
the court would have to rely on Agood reason@ or the best interests of
the child in determining which parent should be awarded custody.
Thus, as properly construed, section 11B7 provides that fit parents are
entitled to custody. If the child does not have a fit parent, good reason
exists to award the child to a third party. In a situation in which the
parties live apart, the court may award the child to either parent if
both are fit. If neither parent is fit, the court may award custody to
some other person. The Alive apart@ language has no application when
one parent is deceased. Even petitioners concede that it is not the last
sentence of section 11B7 that applies to respondent, but rather the
second (i.e., Aif one parent is dead@).
Although section 11B7 is quite clear that fit parents are entitled to
custody, this court has historically refused to apply the statute as
written. Instead, this court has repeatedly held that, despite the
statute=s pronouncement, a fit parent=s custody rights are subservient
to the best interests of the child. See, e.g., Kirchner, 164 Ill. 2d at
484-85; In re Estate of Whittington, 107 Ill. 2d 169, 177 (1985);
Townsend, 86 Ill. 2d at 508; People ex rel. Edwards v. Livingston, 42
Ill. 2d 201, 209-10 (1969). A typical example of this court=s view of

-12-
section 11B7 can be found in Kirchner. That case reaffirmed the
principle that, in an adoption case, a court cannot consider the best
interests of the child and whether those interests would be best served
by adoption until after the parents are proved to be unfit by clear and
convincing evidence. Kirchner, 164 Ill. 2d at 475-76. The prospective
adoptive parents in Kirchner attempted to rely on Townsend for the
proposition that fitness of the parents is only one factor to consider in
determining the best interests of the child. In rejecting this argument,
this court stated the following:
AAlthough Townsend cites to Giacopelli and further finds
that the father at issue need not be found unfit to award
custody of his child to a third party, it does so pursuant to the
Probate Act of 1975, which is only triggered upon the death
of a parent, a situation we are not confronted with in the
instant case. Unlike the Adoption Act, the Probate Act does
not statutorily mandate a finding of unfitness as a condition
precedent to divesting a parent of custody. (See 755 ILCS
5/11B7 (West 1992); see also People ex rel. Edwards v.
Livingston (1969), 42 Ill. 2d 201 (a probate case deciding
custody based upon the best interests of the child without a
prior finding of unfitness).) The best-interests standard
employed pursuant to the Probate Act in Townsend and
Edwards is thus inapplicable to the case at bar both because
this case does not involve a deceased parent and because
Otto=s cause of action arises out of the Adoption Act, which
mandates a finding of unfitness before parental rights may be
terminated.@ Kirchner, 164 Ill. 2d at 484-85.
There are numerous problems with this passage. First, this court
mistakenly distinguished Townsend on the basis that the Probate Act
is triggered only upon the death of a parent. While it is obviously true
that certain sections of the Probate Act are triggered by the death of a
person, it is not true of the guardianship provisions of the Probate
Act. Neither article XI (755 ILCS 5/11B1 et seq. (West 2004)), which
deals with guardianship of minors, nor article XIa (755 ILCS 5/11aB1
et seq. (West 2004)), which deals with guardianship of disabled
adults, is triggered automatically by the death of a person. Nothing in
article XI limits its application to situations in which one parent is
deceased. The guardianship of minors provisions of the Probate Act
are triggered not upon the death of a parent, as stated in Kirchner, but

-13-
rather upon Athe filing of a petition for the appointment of a guardian@
or on the court=s own motion. 755 ILCS 5/11B5(a) (West 2004). By
its very terms, the Act contemplates guardianship proceedings in
which both parents are living. See 755 ILCS 5/11B7 (West 2004) (AIf
both parents of a minor are living,@ AIf the parents live apart@); 755
ILCS 5/11B8(a)(2)(ii) (West 2004) (AThe petition for appointment of
a guardian *** must state, if known: *** the names and post office
addresses of *** the parents and adult brothers and sisters, if any@).
Indeed, Townsend, the case Kirchner distinguished as being based on
the Probate Act, which was supposedly triggered only upon the death
of a parent, was a case in which both parents were living. In
Townsend, the minor=s mother, who had been the custodial parent,
was convicted of murdering the father=s wife. The father then
attempted to gain custody of his daughter, who had been in the care
of her older sister since her mother=s incarceration. Both parents were
living, and this court decided the case under section 11B7 of the
Probate Act. See also, e.g., Barnhart, 232 Ill. App. 3d 317 (a
guardianship proceeding under the Probate Act, in which both parents
were living).
The second problem with the Kirchner court=s view of the Probate
Act was its assertion that A[u]nlike the Adoption Act, the Probate Act
does not statutorily mandate a finding of unfitness as a condition
precedent to divesting a parent of custody.@ Kirchner, 164 Ill. 2d at
484-85. Two authorities are cited for this proposition. The first is
section 11B7, which says the exact opposite. Section 11B7 clearly
provides that fit parents are entitled to custody. The second authority
cited was Livingston. In that case, this court acknowledged that the
predecessor section to section 11B7 provided that a surviving parent,
if fit, was entitled to the custody of this child. Despite this clear
language, however, this court held that parental fitness was only one
factor for the court to consider and that a fit parent=s rights must yield
to the best interests of the child. Livingston, 42 Ill. 2d at 209-10.
Livingston, however, relied on Giacopelli v. The Florence Crittenton
Home, 16 Ill. 2d 556 (1959), a case that this court overruled and
criticized in Kirchner. Kirchner held that Giacopelli was wrong even
at the time it was decided (Kirchner, 164 Ill. 2d at 483 n.1), was
Aclearly unconstitutional,@ (Kirchner, 164 Ill. 2d at 482), and, by
dispensing with a requirement of unfitness, was Aan unconstitutional
remnant of a bygone era@ (Kirchner, 164 Ill. 2d at 482).

-14-
 Not cited by the Kirchner court was section 11B5(b) of the
Probate Act, the amendments to which had been in effect for one year
when Kirchner was decided. As we discussed earlier, section 11B5(b)
now provides that a court lacks jurisdiction to proceed on a
guardianship petition if the minor has a living parent whose
whereabouts are known and who is willing and able to carry out day-
to-day childcare decisions. It is not clear what, if any, difference there
is between section 11B7=s reference to fit parents who are competent
to transact their own business and section 11B5(b)=s reference to
parents who are willing and able to carry out day-to-day childcare
decisions. The legislature might have believed that the amendment to
section 11B5(b) was necessary in light of this court=s interpretation of
section 11B7. Regardless, Kirchner=s conclusion that the Probate Act
does not mandate a finding of unfitness as a condition precedent to
divesting a parent of custody is rendered even more questionable by
the amendment to section 11B5(b).
This court=s cases refusing to apply section 11B7 as written are
wrong and should no longer be followed. Section 11B7 means what it
says: fit parents are entitled to custody. The Probate Act, as properly
construed, protects the due process rights of fit parents and does not
suffer from the same constitutional infirmities as the Washington
statute considered in Troxel.
For the reasons stated, we agree with the holding of the appellate
court that the standing requirement for guardianship petitioners under
the Probate Act is that stated in section 11B5(b). We disagree with the
appellate court only to the extent that it suggested that a fit surviving
parent may be deprived of custody under the Probate Act if he or she
was living apart from the other parent at the time that parent died. We
affirm the judgment of the appellate court and remand this cause to
the circuit court to resolve this case under the proper standards. The
petitioners lack standing to proceed with their petition unless the
court determines that they have rebutted the presumption that
respondent is willing and able to make day-to-day child care
decisions. Moreover, if respondent is a fit person who is competent to
transact his own business, he is entitled to custody of R.L.S.

Appellate court judgment affirmed;
cause remanded.

-15-