dissenting:
I do not agree with the majority that we can now conclude, on the evidence before us, that the Does lack standing to request a custody hearing on behalf of the minor child they have unsuccessfully attempted to adopt. A number of factual questions must be resolved before a determination of the Does’ standing can be made. Because these threshold issues have not yet been decided, I would direct the circuit court to consider, on an expedited basis, the matters pertinent to this inquiry.
This court’s prior decision did not address, much less resolve, the issues raised in the present case. In a majority opinion, and in a separate concurring opinion joined by three members, this court previously determined only that the finding of unfitness entered by the circuit judge could not stand, and that Kirchner’s parental rights had therefore been improperly terminated. (In re Petition of Doe (1994), 159 Ill. 2d 347.) The earlier case did not decide whether Kirchner’s biological relationship to the child is paramount to all other considerations, as Kirchner argues, or, instead, whether a separate hearing should now be conducted to determine what custodial disposition would be in the child’s best interests, as the Does contend.
The Does base their right to seek a custody hearing on section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act, which provides that a custody hearing may be initiated "by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (750 ILCS 5/601(b)(2) (West 1992).) Once the standing requirements of section 601 are satisfied, section 602 directs the court to "determine custody in accordance with the best interest of the child.” (750 ILCS 5/602 (West 1992).) The court is to consider all relevant circumstances in making that determination, and the statute lists a number of matters that should be considered.
The majority concludes that the Does lack standing under section 601(b)(2) to seek a custody hearing on behalf of Baby Richard because the biological father did not voluntarily relinquish custody of the child and because the Does participated in Daniella’s deception of Kirchner. In addition, the majority believes that, upon the reversal of an adoption decree, custody of the child involved must automatically vest in a parent whose rights would otherwise have been terminated by the decree.
As a preliminary matter, I do not agree with the majority that reversal of the adoption decree must necessarily vest custody of the child in Kirchner. The majority recognizes that the Adoption Act (750 ILCS 50/5 through 24 (West 1992)) does not specify the consequences of an adoption decree that is overturned on appeal, yet the majority believes that the procedural safeguards afforded unwed fathers "militate that fathers be placed in the same legal position” afterwards. (164 Ill. 2d at 489.) To the majority, this can be accomplished only by granting the biological parent immediate and exclusive custody of the child, even though the unwed father in this case did not have custody before the adoption.
The majority’s conclusion, however, ignores the essential differences between the custody hearing the Does now seek pursuant to sections 601 and 602 of the Marriage and Dissolution of Marriage Act and their earlier, unsuccessful petition to adopt the child. Although these are distinct actions with dramatically different consequences, the majority opinion virtually conflates the two. (164 Ill. 2d at 489-90.) Unlike an adoption decree, however, a custody determination made pursuant to section 602 does not result in a termination of parental rights. See In re P.F. (1994), 265 Ill. App. 3d 1092, 1100-01; In re S.J.K. (1986), 149 Ill. App. 3d 663, 673.
I would note further that the death of a custodial parent following a divorce decree does not automatically vest the surviving parent with custody of a minor child. (See In re Marriage of Nicholas (1987), 170 Ill. App. 3d 171, 178; In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 383; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 212.) The majority seeks to distinguish these cases on the ground that the Probate Act specifically authorizes a court to place custody of a minor with a third party on the death of the custodial parent. (See 755 ILCS 5/11 — 7 (West 1992).) What the majority overlooks, however, is that section 601(b)(2) can perform a similar function in cases such as this, allowing a court to award custody to a third party rather than to a parent. Again, it must be recalled that the Does do not now seek to terminate Kirchner’s parental rights.
The majority denies standing to the Does under section 601(b)(2) on the grounds that Kirchner did not voluntarily relinquish custody of the child and that the Does took part in the scheme that allegedly deprived Kirchner of his parental rights. The first reason cited by the majority is not applicable here; the second reason requires a factual determination that should initially be made on a fully developed record in the trial court.
The requirement of a voluntary relinquishment of the child by his or her biological parents is intended to discourage child abductions and other illicit self-help measures that would otherwise grant a third party standing pursuant to the literal terms of section 601(b)(2). (In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 544.) This sensible limitation on the availability of relief under that provision is not implicated in the present case, however. Kirchner never had custody of the child to begin with, and therefore he had nothing to relinquish. Indeed, the majority’s construction would erect an insuperable bar to the application of these provisions in any case involving an unwed father who is absent at the time of the child’s birth and whose parentage is not established prior to the mother’s consent for adoption. If one accepts the majority’s view that a biological parent must have voluntarily relinquished custody over the child before a nonparent can have standing under section 601(b)(2), then an unwed father who has never had custody will find himself in a more advantageous position than a married father whose conduct could be found to amount to a voluntary relinquishment.
The majority also concludes that standing must be denied to the Does because they took part in Daniella’s deception of Kirchner. I agree with the majority’s premise that a nonparent seeking standing under section 601(b)(2) must not have acted illicitly in gaining custody of the child. That inquiry, however, raises a number of important factual questions that have not previously been resolved. Indeed, determinations of standing under section 601(b)(2) are fact-intensive inquiries that require consideration of a number of circumstances. (In re Kulawiak (1993), 256 Ill. App. 3d 956, 961-62.) Nonetheless, the majority proceeds to resolve these issues without the benefit of a factual record adequate to support the opinion’s conclusions.
An example drawn from the majority’s numerous attempts to prejudge the facts in this case will illustrate the difficulty of making these important determinations on the basis of the materials currently before us. The majority suggests that the Does, intending to advance Daniella’s scheme to keep the birth of the child a secret from Kirchner, prevailed upon Daniella to give birth to the child in a hospital different from the one originally selected by her and Kirchner. (164 Ill. 2d at 472.) Contrary to the majority’s view, however, the evidence presented at the adoption hearing does not resolve this question. The Does did not testify at the adoption hearing, and the record does not show whether they acted in the manner ascribed to them by the majority, or instead whether they or Daniella had legitimate reasons for choosing the particular hospital where the birth occurred. It should be noted, however, that the Does, who were paying the costs of the delivery, lived quite close to the hospital in question, which could well have been the facility they used for their own medical needs. In addition, it appears that the hospital where the child was born was closer to Daniella’s uncle’s house in Hillside, where Daniella was then living, than was the hospital she and Kirchner had initially selected in their former neighborhood.
The majority’s conclusion that the change in hospitals was part of a scheme to deceive Kirchner is not fairly supported by the evidence now before us; on this record, we simply do not know what led the Does to pick the hospital at issue. This question, and the many other questions raised in the majority opinion regarding the conduct of the adoptive parents and their attorney, should be resolved through an evidentiary hearing, and not on the basis of adverse inferences derived from a previous hearing in which the biological father was found unfit. Unlike the majority, I do not believe that either the slim record in this habeas proceeding — an original action in this court, without an evidentiary hearing below — or the lengthier record developed in the earlier adoption action permits us to resolve these questions at this time. Moreover, although the adoption action raised some of the matters pertinent here, the judge who presided at the earlier proceeding did not make, and was not called upon to make, factual determinations that would have preclusive effect on the issue of the Does’ standing. The majority’s efforts to resolve these questions of fact in this opinion are premature, and I would await a full and complete hearing at which the Does would have the opportunity to testify before deciding the circumstances of the failed adoption.
Pending in the circuit court of Cook County is a petition filed by the Does in which they seek custody of Baby Richard pursuant to sections 601 and 602. In the exercise of our supervisory authority (Ill. Const. 1970, art. VI, § 16), I would direct the trial judge in that case to consider, on an expedited basis, the question of the Does’ standing. At that time the parties could present testimony and other evidence concerning the manner in which the Does acquired custody of Baby Richard. If the judge below found that the Does did in fact have standing, the judge could then proceed, again on an expedited basis, to the best-interests hearing contemplated by section 602.
If a hearing were to become necessary, Kirchner could then assert the presumption recognized by our law that parents whose rights have not been properly terminated have a superior claim to the custody of their offspring. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 208-10.) This court has previously described the nature of the presumption that operates in favor of biological parents:
"In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. [Citations.] A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served. [Citations.] This standard or 'guiding star’ [citation] is a simple one designed to accommodate the often complex and unique circumstances of a particular case.” In re Custody of Townsend (1981), 86 Ill. 2d 502, 508.
As Townsend explains, the presumption in favor of a biological parent is not dispositive. A court conducting a custody hearing pursuant to section 602 must also consider other relevant circumstances. If the Does were found to have standing to seek a custody hearing, Kirchner would have an opportunity to assert the presumption favoring a biological father whose parental rights have not been terminated and to maintain that Richard’s best interests require that custody of the child be placed with him. I believe that these procedures would be sufficient to protect the constitutional rights Kirchner possesses as an unwed father. (See Lehr v. Robertson (1983), 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985; Quilloin v. Walcott (1978), 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549.) Because I believe that sections 601(b)(2) and 602 together are capable of granting the Does and the child the relief they now seek, I do not consider here the operation or scope of the recent amendment to the Adoption Act that the Does contend also applies to this case (see Pub. Act 88 — 550, eff. July 3, 1994 (adding 750 ILCS 50/20(b)), or the claim advanced on behalf of the child that he is constitutionally entitled to such a hearing.
Because significant factual questions remain to be resolved in this matter, I would dismiss the complaint for a writ of habeas corpus filed by Kirchner in this court and would allow the custody action previously initiated by the Does in the circuit court of Cook County to go forward on an expedited basis. That court, with its ability to receive evidence, is the proper forum to initially determine whether, as a threshold matter, the Does have standing to seek custody of Baby Richard, and, if so, what custodial disposition would be in the child’s best interests, considering the presumption in favor of a biological father and the unique circumstances presented here.