dissenting:
The standing requirement of section 601(b)(2) of the Act is designed to protect the superior natural right of parents. If one of the parents has physical custody of the child, a nonparent may not bring an action to contest that parent’s right to continuing custody under the best-interests-of-the-child standard of section 602; instead, unfitness must be proved under the comparatively strict standard of the Juvenile Court Act of 1987 (705 ILCS 405/1 — 1 et seq. (West 1996)) or the Adoption Act (750 ILCS 50/1 et seq. (West 1996)). Gustafson, 181 Ill. App. 3d at 475, 536 N.E.2d at 1360; Uniform Marriage and Divorce Act § 401, Comment, 9A U.L.A. 264 (1998). However, where the parents are not actually raising the children, where the child “is not in the physical custody of one of his parents,” section 601(b)(2) allows a nonparent to petition for custody.
It is the situation that exists at the time the petition is filed, or immediately before it is filed, which is important. Kay’s petition was filed in late 1997. The fact that Kay had custody in 1994 while Walter was in prison or that Walter had custody in 1995 or that Rhonda had custody in 1996 is not particularly relevant.
The fact that after Rhonda’s death “Walter located Destiny, who had been staying with some nonrelatives, and took her to live with him” is not controlling. 301 Ill. App. 3d at 782. Mere physical possession of the child at the time custody litigation is initiated will not be enough, because a court will not tolerate abduction of the minor to satisfy the literal terms of the standing requirement. Peterson, 112 Ill. 2d at 53-54, 491 N.E.2d at 1152-53; Rudsell, 291 Ill. App. 3d at 633, 684 N.E.2d at 426; In re Custody of Menconi, 117 Ill. App. 3d 394, 453 N.E.2d 835 (1983) (father forcibly removed child four days before petition filed).
Was Destiny in the physical custody of one of her parents before Kay’s petition was filed? The trial court’s order makes it clear that Walter did not have physical custody. “The court finds that respondent has had little contact with the minor child until the death of the petitioner on March 15, 1997,” that after'he was released from jail in December 1996, respondent resided with his grandparents, then with a male friend and female friend, then with a different female friend.
Did Rhonda have physical custody before her death? The problem with allowing the issue of standing to be raised after the evidence has been taken is that it is unlikely the evidence will do much more than touch on the issue. There was evidence that Rhonda did not have physical custody. At the time of Rhonda’s death Destiny had been “staying with some nonrelatives.” It would have been helpful to have known some details of that stay. There was also testimony that Rhonda did not continuously have physical custody of Destiny in the months before her death, that Walter and others sometimes had “physical custody,” although the trial court found that Walter’s relationship with the child did not amount to “physical custody.”
The majority sees it as important that, even when Walter and Rhonda were not living together in the period before Rhonda’s death, “Rhonda and Destiny never lived with Kay.” 301 Ill. App. 3d at 782. It is irrelevant whether Destiny lived with Kay. What is important is whether Destiny lived with one of her parents. If she did not, for example, if she was in the physical custody of an aunt, or was in no one’s physical custody, simply moving from house to house after a few days’ stay, then Kay and anyone else had standing to file a petition for custody.
When one parent has legal custody, the custodian cannot destroy the rights of the noncustodian by giving up the child to a third party. That is what Kirchner meant when it said the determination that a parent does not have physical custody 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. Kirchner, however, where the mother told the father the child was dead and then gave the child up for adoption, is a very different case from this one. See Brownfield, 283 Ill. App. 3d at 740, 670 N.E.2d at 1206 (Cook, J., specially concurring). In a case like this one, if a mother has legal custody but allows the child to be raised by others, the father cannot justify his inaction by the fact that the mother and not he had legal custody. If the mother allows the child to be in the physical custody of third parties and the father does not object, then the father “has voluntarily and indefinitely relinquished custody of the child.”
Because Walter did not raise the issue of standing until after the evidence had been presented, the evidence on standing is sparse in this case. Nevertheless, there was some evidence to support the trial court’s decision, and I cannot say that decision was contrary to the manifest weight of the evidence. A decision is contrary to the manifest weight of the evidence when an opposite conclusion is apparent or when the findings are unreasonable, arbitrary or not based on the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242, 665 N.E.2d 1260, 1274 (1996). That is not the case here. A lack of evidence does not make apparent a conclusion opposite to that of the trial court. It is improper for this court to draw inferences, even from uncontested facts, contrary to those drawn by the trial court, for example, where the majority (1) points to the conflict in evidence on how long Rhonda and Destiny stayed with Kay; (2) states that it would be unreasonable to expect Walter to think that Kay had physical custody of Destiny; and (3) concludes that Walter agreed to transfer custody of Destiny only as a showing of his sincerity in wanting to remarry Rhonda. 301 Ill. App. 3d at 782. The trial court was very concerned about the relationship between Walter and the child here, not just awarding custody to Kay, but restricting Walter’s visitation.
Sechrest urged the trial court to raise the issue of standing sua sponte, during the time for pleading, after which the issue is waived. Sechrest, 202 Ill. App. 3d at 873-75, 560 N.E.2d at 1217-18. The trial court did not raise the issue during the time for pleading here. When the issue was finally raised the trial court considered it and rejected it, based on the limited evidence presented. The trial court reached the same result in ruling on the issue that it would have reached if it had found the issue waived. If the trial court had been inclined to find the other way it may very well have allowed Kay to reopen the evidence. The majority opinion overturns the decision of the trial court based on the following facts: (1) Walter never “voluntarily and indefinitely relinquished his right to custody,” (2) Destiny’s stay with Kay in 1994 and at other times was not sufficient for Kay to have physical custody, (3) Walter had physical custody in 1994, and (4) after Rhonda’s death Walter took Destiny from the nonrelatives with whom she had been staying. Those facts are discussed above. The majority’s analysis does not address the key question, whether Rhonda had physical custody at the time of her death.
It is not clear that Destiny was in the physical custody of a parent before this petition was filed. That being the case, we should accept the decision of the trial court finding standing. A standing requirement is useful as a rough filter to prevent the filing of petitions by those who have no legitimate interest in the care of the child, but is poorly suited to resolving real disputes between those who do have such an interest. Deciding these cases by a standing requirement is similar to attempting to decide every case by summary judgment. In fact, it is worse because a motion for summary judgment looks to the issues in the case, while the standing requirement addresses only the artificial issue whether the child is “in the physical custody of one of his parents.” Broad application of the standing requirement of section 601(b)(2) will result in awards contrary to the best interests of the child. A standing requirement is unnecessary to protect the natural rights of the parent. Even where the court decides the case under the best-interests-of-the-child standard, it still will 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); Rudsell, 291 Ill. App. 3d at 633, 684 N.E.2d at 426. This is not a termination-of-parental-rights case, despite the majority’s characterization. 301 Ill. App. 3d at 780.