concurring in part and dissenting in part:
I find no good reason to further delay resolving Christy’s custody by remanding this case for further hearings in the circuit court. Nor do I think it is in Christy’s best interest to subject her to the “sometime pace of our judicial process” (as the majority puts it) (86 Ill. 2d at 515), which frequently takes an agonizingly long time. In custody cases especially, the courts should emphasize speedy resolution. Christy has just turned five. I do not think we should risk dragging out this case until she is six or seven before her permanent custody is settled; if, as I feel he should be, the father is awarded custody, it is in Christy’s best interest to commence living with him as quickly as possible. My judgment is that we can better serve the interests of the child by reaching a decision on the record before us than by trying to dot every “i” and cross every “t” with further information which (as I demonstrate below) is really not needed. The father, Gary, has chosen to work “within the system,” but he has been at it for 2}£ years since he filed this case. That is sufficient time to decide under whose care Christy should live and show that “the system” can work expeditiously.
Both Christy’s father and half-sister are fit to have custody, according to the trial judge. The majority says Gary has the advantage of the superior-right doctrine which the law attaches to a natural parent. I agree. The half-sister has shown no compelling reason why the natural parent should not have custody, as the majority says she must and with which I also agree. This should end the matter in the father’s favor.
The majority suggests the importance of determining whether Gary’s wife would welcome Christy into the new family group. I think this is answered by the fact that Gary has continued to seek Christy’s custody after his remarriage by appealing this case to the appellate court and resisting Brenda’s appeal to this court. It is unlikely that he would be persisting in this litigation if Mrs. Townsend objected to Christy becoming a part of her family.
The changes in Gary’s life brought on by his remarriage appear to have improved his fitness to raise Christy. Brenda emphasized in this court as well as in the circuit and appellate courts that if Gary was given custody there would be a strained relation between his son Alan and Christy when they lived only with Gary, for Alan would resent the fact that Christy’s mother had murdered his mother. Whether such resentment would develop is a matter of speculation; it is, in my judgment, less likely now that Christy and Alan would be living with a new mother figure (the new Mrs. Townsend) and her two minor children. I feel this setting is better for Christy than either living only with Gary and Alan or being taken care of by her mother’s present and former husband, George Poling, and other relatives while the half-sister, Brenda, is at work.
This case has been in the courts since Christy was 2ii years old. In her best interest I think now is the time to end it by an order awarding custody to her natural father.
I might add that this case has arisen because of a deficiency in the statutes. The superior right of a natural parent to the child is protected in proceedings under the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 1) and the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1501 etseq.) and is not at issue in custody proceedings under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)). But the problem here arose because Christy Townsend was born an illegitimate. None of those acts applied, and the lower courts were forced to create a procedure and a standard for Gary’s petition. All this court can find to guide it is a terse section from the Probate Act (Ill. Rev. Stat. 1979, ch. 110M, par. 11 — 7), despite the fact that neither parent is dead. The Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) has provisions to protect the mother and child in cases like this, but there is no procedure by which a father can petition for custody of his child when the mother is alive but unavailable. There should be procedures in custody disputes like this to guide the court and protect the natural father’s rights just as there are under the Juvenile Court Act and the Adoption Act. I commend the problem to the legislature and suggest that it consider adding custody directives to the Paternity Act.