specially concurring:
I concur in the decision of the majority to affirm and agree with the thorough explanation given in the majority opinion. I concur specially merely to respond to the logical argument of petitioners to intervene that “physical custody,” as described in section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act), means physical custody in the ordinary sense, and the record is clear that neither parent had “physical custody” at times pertinent here. Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).
The problem of statutory interpretation involved here arises because of tension between a very strong public policy of the State and the language of section 602 of the Act. The public policy is that which recognizes the paramount right of natural parents to the care, custody, and control of their children as explained by the majority and as set forth in the case of In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231. The statutory language is that of section 602(a) of the Act which states that in custody proceedings under the Act, “[t]he court shall determine custody in accordance with the best interest of the child.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 602(a).
Accordingly, as the majority points out, persons having standing to proceed under section 601 of the Act can obtain custody of a child by merely proving that the best interests of the child would be served by that custody. Section 602(a)(1) of the Act does state that in making a custody determination, “the wishes of the child’s parent or parents” shall be given consideration (Ill. Rev. Stat. 1987, ch. 40, par. 602(a)(1)), but that statement is insufficient to protect the paramount parental right enunciated in Townsend. Thus, when a parent having legal custody dies (Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150; O’Rourke, 160 Ill. App. 3d 584, 514 N.E.2d 6) or leaves a child with others (Santa Cruz, 172 Ill. App. 3d 775, 527 N.E.2d 131) and the other parent has shown interest in the child and makes a timely request for legal custody, the courts narrowly construe the provisions of section 601(b)(2) which give nonparents standing to seek custody.
If the phrase “physical custody” be given its plain and ordinary meaning, one cannot accurately say that the noncustodial parent obtained “physical custody” of the child upon the death of the custodial parent in Peterson or O’Rourke. Rather, the decisions can only be based upon a theory that, because of the noncustodial parent’s interest in the child and prompt request for custody, he obtained a constructive “physical custody.” Similarly, here, where the father had shown interest in the children and made a request for legal custody in less than two months from the time the mother gave up her “physical custody,” a constructive “physical custody” in the father is implied. This case differs from Santa Cruz, where the conduct of the custodial parent was not deemed to be a surrender of “physical custody,” as the evidence here would indicate an abandonment of her “physical custody.”
Under the strong public policy of this State of protecting the predominate rights of the natural father of these children to his care, custody, and control, he is protected from having to defend in a proceeding where he could be deprived of custody merely because the best interests of the children would be served in the custody of their grandparents. The petition to intervene alleged that the father “was not capable of providing a proper home for the children.” As the majority has stated, if this is so, the children can only be protected by a proceeding (1) under the Juvenile Court Act of 1987 to determine if, upon going into the father’s custody, the children are neglected or abused (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3), or dependent (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 4); or (2) under the Adoption Act, to determine whether the father is an “unfit person” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)).