specially concurring:
I agree with the determination that Cindy did have standing to petition for custody of the stepchildren.
I write separately only with respect to the weight to be given to the custody agreement and our approval of Carey.
It is important that the court give little weight to the custody agreement between Marc and Joan. The agreement was clearly in the children’s best interests. We should and do encourage parents to help the trial courts settle custody. Parents who set aside a self-centered, parent ego, in favor of what is in the best interests of their children, should not be penalized. The noncustodial parent should not be in a weaker position in the event the custodial parent becomes deceased or incapacitated. A mother’s conscientious and reasonable decision relinquishing custody to the father is not reason to deny her custodial rights when the father becomes deceased. Voluntary relinquishment must be based upon other evidence. I agree there is sufficient other evidence to determine Cindy has standing. I do have concern that Cindy and Marc planned this proceeding as evidenced by the petition being filed the day Marc died. The evidence does not show, however, that Marc and Cindy impeded Joan in any way in maintaining her relationship with the children.
These cases are fact specific. Although I agree with the trial court here, I do not necessarily endorse the reviewing court’s decision in Carey.