dissenting:
I respectfully dissent because the holding of the majority cannot be reconciled with our supreme court’s decision in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.
The majority recognizes that Mary only had standing to petition for custody of Brendan under the Act if he was “not in the physical custody of one of his parents” (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). In Peterson, the child resided with her mother and maternal grandparents following the dissolution of her parents’ marriage. The father, who lived on the same block, regularly exercised his visitation rights. After the mother’s death, the grandparents petitioned for custody under the Act. Our supreme court noted that the grandparents had assisted in caring for the child but went on to state as follows:
“Considering, however, that the mother continued to live with the child, it would not reasonably occur to the father that the maternal grandparents had physical custody of his child and were developing a position of standing, so that upon the death of his wife he could be deprived of his right to custody of his child. The father regularly exercised his visitation rights with Lynette at the Jadrychs, where Lynette and her mother lived. Within the meaning of section 601(b)(2) Lynette must be considered to have been, upon her mother’s death, in the physical custody of her father.” (Emphasis added.) Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153.
As Justice Green observed in his special concurrence in In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, Peterson provides that if the noncustodial parent continually shows interest in a child and seeks custody upon the death of the custodial parent, a constructive physical custody will be implied in favor of the noncustodial parent. (Gustafson, 181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring).) This serves to protect the right of natural parents as against third parties to the care, custody, and control of their children (181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring)), a right that was mentioned in Peterson (112 Ill. 2d at 51, 491 N.E.2d at 1151). Here, as in Peterson, the noncustodial parent continually showed an interest in the child by regularly exercising visitation rights. The noncustodial parent also sought custody in both instances and immediately challenged custody petitions filed by third parties who had resided with the child and the custodial parent.
The only major factual difference between this case and Peterson is that the noncustodial parent contested custody of the child during the dissolution proceedings in Peterson while Carol Carey agreed in the case at bar that her husband, John, would receive custody of Brendan. Such an agreement, however, is not tantamount to an abandonment of a child or a loss of interest in him. A holding to the contrary would only serve to discourage amicable settlement of custody matters in dissolution proceedings by forcing the parties to litigate custody matters in order to fully protect their parental rights in the event of the other parent’s death.
In the case at bar as in Peterson, the noncustodial parent regularly exercised visitation rights and maintained an interest in the child. It would not have occurred to Carol that the presence of Mary in John’s household could cause Mary to attain standing to seek custody of Brendan in the event of John’s death, just as it would not have occurred to the father in Peterson that the presence of the mother in the grandparents’ household would give the grandparents standing to seek custody upon the mother’s death (112 Ill. 2d at 54, 491 N.E.2d at 1153). Under Peterson and section 601(b)(2) of the Act, Mary lacked standing to seek custody of Brendan pursuant to the Act because Carol had physical custody of Brendan upon John’s death.
In addition to protecting the rights of noncustodial parents, the Peterson holding also serves the interests of children. This is somewhat ironic because the standard for custody determinations under the Act is the best interests of the child, and Peterson takes a restrictive view of standing under the Act. By doing so, however, our supreme court has discouraged custody litigation upon the death of custodial parents, thus preventing many children who have undergone the trauma of a parent’s death from then undergoing the trauma of being the subject of a custody battle. In cases where the noncustodial parent is an unfit custodian, custody may still be challenged under the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.) as our supreme court noted in Peterson (112 Ill. 2d at 55, 491 N.E.2d at 1153). Since I believe that Peterson compels.the conclusion that Mary did not have standing under section 601(b)(2) of the Act to seek custody of Brendan, I respectfully dissent.