specially concurring:
I agree with the majority’s disposition of this case, but I believe its reasoning is too restricted. In my view, the surviving spouse of a custodial parent should generally have standing to seek custody under section 601(b)(2) of the Act, even if that surviving spouse is not related by blood to the child. 750 ILCS 5/601(b)(2) (West 1994).
In Carey, the court found that a stepmother, the widow of the custodial father, had standing for two reasons: (1) a mother-son relationship existed between the stepmother and the child, and (2) the natural mother had voluntarily relinquished legal custody and agreed to the child’s move out of state. Carey, 188 Ill. App. 3d at 1049, 544 N.E.2d at 1299. The dissent in Carey was critical of the court’s reliance on factor (2). Making that factor the determinant "would only serve to discourage amicable settlement of custody matters in dissolution proceedings.” Carey, 188 Ill. App. 3d at 1053, 544 N.E.2d at 1301 (Dunn, J., dissenting).
In Kirchner, the supreme court further considered the standing requirement, which is found in the statutory language that a nonparent may petition for custody of the child "only if he is not in the physical custody of one of his parents.” 750 ILCS 5/601(b)(2) (West 1994). Kirchner stated, "[t]he determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child.” Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335. That language from Kirchner does seem to focus on factor (2), the conduct of the noncustodial biological parent, but Kirchner is a very different case on its facts from Carey. As the supreme court pointed out in Kirchner, "[i]n simple terms, Richard is in the Does’ home without color of right.” Kirchner, 164 Ill. 2d at 492, 649 N.E.2d at 335. The same cannot be said of a child whose custody has been awarded to one parent in a dissolution of marriage proceeding, even where the other parent has objected to that award. In the present case, the children were not in Cindy’s home "without color of right.” In my view, the fact that the parties have submitted their custody dispute to the dissolution court, and that court has awarded custody, satisfies the Kirchner requirement that there be a "voluntary relinquishment.” Kirchner cited Carey with approval. Kirchner, 164 Ill. 2d at 492, 649 N.E.2d at 335.
Imagine a situation where the parents are divorced shortly after the child’s birth, the father receives custody, then remarries, and the stepmother raises the child until he is 10 years old. If the natural mother did not agree to custody, and visited the child every few months (which the court finds to be reasonable under the circumstances), then under the majority’s rule the court cannot even consider whether custody in the stepmother is in the best interest of the child. That is so even if the stepmother is the only mother the child has ever known. Perhaps custody in the natural mother would be an appropriate result in some such cases, but it is not the result which should be mandated in all cases, and I do not read Kirchner to require it.
I agree with the Carey dissent that we should not discourage the amicable settlement of custody matters. In my view, Cindy should have standing in this case even if Joan had not entered into the marital settlement agreement, even if Joan had not asked Marc to take custody of Tanya, and even if Joan had been able to exercise visitation more frequently. A court should not have to find that the natural mother is a bad person in order to find standing on the part of the stepmother. Because of the mother-child relationship in this case which developed over a period of five years, with color of right, the court should at least consider whether an award to Cindy is in the best interests of the children. Cindy is not an intermeddler in the affairs of these children.
If Cindy is found to have standing and the case is decided under the best interest of the child standard, the court will still give considerable weight to the right of the natural parent. In re Custody of Townsend, 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234 (1981). The first factor listed under the best interest of the child standard is "the wishes of the child’s parent or parents as to his custody.” 750 ILCS 5/602(a)(1) (West 1994).
I disagree with the Carey dissent that the only difference between that case and Peterson was that in Peterson the noncustodial parent contested custody during the dissolution proceedings. I agree with the Carey majority, which looked to factor (1), the relationship between the grandparents and the child. "Although the grandparents in Peterson provided a home and helped their ailing daughter care for the child, there was no indication that the grandparents had established any parental relationship with the child.” Carey, 188 Ill. App. 3d at 1050, 544 N.E.2d at 1299. In Peterson, "Lynette was in the sole care of the Jadrychs only through the fortuitous occurrence of Felicia’s death” at a time Felicia happened to be living with the Jadrychs. Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153.