dissenting:
I would reverse the judgment of the trial court and remand this cause for a further hearing as to the present circumstances of the parties who are seeking custody of Carrie Ann Henkins.
According to the statement of the trial court at the hearing on the post-trial motion, the court found that the “weight of the evidence was for the best interest of the child to remain with the grandparent.” This statement does not indicate that the court gave any consideration or recognition to the presumption that a parent has a superior right to custody as against a third party. Although admittedly the presumption is not a conclusive one, the third party seeking to obtain or to retain custody must show that the best interest of the child requires custody to be awarded to the third party. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 510-11, 427 N.E.2d 1231, 1235-36.) In my opinion, the fact that the circumstances in Townsend were “bizarre,” as the majority characterizes them, does not invalidate the principles of law used by the Supreme Court of Illinois to decide that case.
The Townsend court, as the majority notes, relied upon People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417, where the question before the court was whether the natural father could be denied custody without a finding that he was unfit. In that case the parents had been divorced, the mother had had custody for nine years, the father had not seen his son for 11 years though he lived within 30 miles, the mother had died, and the father brought habeas corpus against the maternal grandfather. An important statement of law contained in the Livingston decision is:
“In Giacopelli v. The Florence Crittenton Home, 16 Ill. 2d 556, we stated at 565: ‘It is always recognized that a natural parent has a superior right to the custody of his child.’ ” 42 Ill. 2d 201, 209, 247 N.E.2d 421.
This court has followed the same legal principle many times. For example, in In re Ross (1975), 29 Ill. App. 3d 157, 168, 329 N.E.2d 333, 341, Justice Jay Alloy stated:
“In Illinois, a natural parent has superior claim to the custody of his children, but that claim may be overcome in certain circumstances by a showing that the best interests of the child require custody in some other party. [Citations.] This does not mean that children can generally be taken away from their parents by simply making a showing that the children would be better off elsewhere.” (Emphasis added.) Accord, In re Ice (1976), 35 Ill. App. 3d 783, 786, 342 N.E.2d 460, 462.
As I have indicated previously in cases involving attempts to terminate parental rights, “By someone’s standards, it is always possible to find a better home for a child than the one Providence has bestowed. For that reason alone, natural relationships are protected by law unless the unfitness of the parents is demonstrated by clear and convincing proof.” (In re Hrusosky (1976), 39 Ill. App. 3d 954, 960-61, 351 N.E.2d 386, 391 (Barry, J., dissenting). See also In re Adoption of Smith (1976), 38 Ill. App. 3d 217, 227, 347 N.E.2d 292, 300-01.) The same public policy should govern the courts in cases of custody disputes involving natural parents against third parties. Courts should recognize the superior right of the natural parent by giving 'effect to the presumption that the best interest of the child is with the parent as against third parties, thereby requiring the third party to overcome that presumption in order to prevail.
I would construe Townsend as authoritatively clarifying how the superior right of the natural parents affects the burden of proof in cases where third parties contest a natural parent’s right to custody of a child. It seems clear to me that the trial court in the case before us did not consider the grandfather’s burden of overcoming the legal presumption that the best interest of Carrie was with her mother. Such an error of law should require a reversal and a remandment.
A reversal is also required because the evidence was inadequate to demonstrate that the best interest of the child was with the grandfather. I have carefully reviewed the transcript of testimony before the trial court. The only evidence relating to the care the grandparents can provide was that the grandfather has medical insurance and that both grandparents have steady employment. There is no evidence describing conditions in the grandfather’s home — it is not clear who lives in that home, who cares for Carrie when both grandparents are at work, what activities Carrie participates in, how she performs in school — and there is no evidence as to the age or health of the grandparents.
There is undisputed evidence that the first four years of Carrie’s life, both she and the mother lived with the grandparents and that the mother cared for her except for four or five times when the mother left the home for short periods of time. It is only during the past two years that the mother has not had daily care of Carrie, and during that time she has had frequent visitation. I would find the evidence insufficient to establish that the best interest of the child is with the grandparents, even without invoking the presumption in favor of the mother.
The majority opinion relies upon Barclay v. Barclay (1978), 66 Ill. App. 3d 1028, 384 N.E.2d 564, and Look v. Look (1974), 21 Ill. App. 3d 454, 315 N.E.2d 623, two cases where the best interest of the child was found to be to reside with the grandparents as opposed to a natural parent. In both cases, the natural parent had left the child with the grandparents for substantial periods of time (four years and five years, respectively) before requesting a return of custody to the parent. Those cases recognize that in such situations a parent may be chargeable with laches or forfeiture, but such was not the case here where the mother requested custody of Carrie within 10 or 12 months after she left her parents home to marry. Her attempts to regain custody were thwarted by the grandparents, and then she took the action which led to this suit. The fact that the mother agreed to let Carrie stay with the grandparents when the mother first married should not foreclose her later assertion of her parental rights. See In re Custody of Roberts (1982), 107 Ill. App. 3d 913, 918, 438 N.E.2d 658, 662.
In summary, I believe the trial court erred as to the burden of proof in this case, and in any event, the evidence was insufficient to establish that the best interest of the child required custody with the grandparents. I, therefore, dissent.