Rose v. Potts

577 N.E.2d 811, 217 Ill. App. 3d 661, 160 Ill. Dec. 486, 1991 Ill. App. LEXIS 1433
CourtAppellate Court of Illinois
DecidedAugust 21, 1991
Docket5-90-0238
StatusPublished
Cited by2 cases

This text of 577 N.E.2d 811 (Rose v. Potts) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rose v. Potts, 577 N.E.2d 811, 217 Ill. App. 3d 661, 160 Ill. Dec. 486, 1991 Ill. App. LEXIS 1433 (Ill. Ct. App. 1991).

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

The circuit court of Crawford County awarded custody of Stacey Marie Rose (hereinafter Stacey) to her mother, Connie Rose, now Connie Saffle (hereinafter Connie), over the claims of Stacey’s father, William Rose (hereinafter William), and her paternal grandmother, Ruth Potts (hereinafter Ruth). Only Ruth has appealed. She alleges that the trial court erred in applying the presumption that custody in the natural parent serves the best interest of the child and that even if this presumption was applicable, the trial court’s finding that she had not overcome it was against the manifest weight of the evidence. The relevant facts will be set forth below chronologically.

In 1983 Connie, at age 17, gave birth to her first child, Michael. Connie and Michael lived with Connie’s parents in Wichita, Kansas, for one year. Connie then obtained a court order placing legal custody of Michael with her parents and joined the United States Army. Shortly thereafter, on February 25, 1984, she married William, who was also a member of the United States Army. Michael remained with Connie’s parents. On December 12, 1985, Connie gave birth to Stacey, and on February 16, 1986, William delivered Stacey to Ruth in West York, Illinois. Connie and William separated on February 19, 1986, and were divorced on April 2, 1986. The decree awarded custody of Stacey to William and provided liberal visitation for Connie. Connie was also ordered to pay $41.50 in monthly child support. The record reveals that Connie did not contest the custody proceedings.

After being discharged from the army in June of 1986, Connie moved back to her parents’ home. In September of 1986 she was convicted and sentenced to 60 days in the county jail and three years’ probation for writing “bad checks.” After being released from jail, Connie worked at her parents’ daycare center earning $75 a week. Connie paid no rent while living with her parents. Also, the record indicates that Connie began receiving disability payments in the amount of $236 in February of 1987. Connie moved out of her parents’ home in November of 1987 and married Mike Saffle on December 1, 1987. Michael remained in the care and custody of Connie’s parents, and Stacey continued to live with Ruth.

In the summer of 1988 William informed Ruth that he intended to take Stacey to live with him in Germany. Ruth sought guardianship rights over Stacey and told Connie of William’s intentions. Thereafter, Connie, William, and Ruth filed petitions seeking permanent custody of Stacey. In September 1989 Connie gave birth to her third child, Joshua.

Connie and Mike Saffle and their son, Joshua, live in Hutchinson, Kansas, approximately 50 miles from Connie’s parents. Mike Saffle is an unemployed school teacher, but he makes $700 a month as a Wendy’s management trainee. Connie no longer works, but she has two years of college education and eventually hopes to return to college and become a schoolteacher. Connie and Mike Saffle have changed residences six times in the last two years, but they have recently made an offer to purchase a home.

The record reveals that during the four years that Ruth has cared for Stacey, Connie has paid only $420 to Ruth for Stacey’s support. While she called Stacey once a month and sent cards on birthdays and holidays, she visited Stacey for only portions of 17 days during this four-year period. Connie admitted that Ruth did not prevent her from visiting Stacey.

Ruth worked for two years as a secretary at Crawford’s Sand and Gravel before Stacey was left with her on February 16, 1986. She quit working to care for Stacey. During the first seven months that Stacey lived with Ruth, Dennis Potts, Ruth’s ex-husband, was the sole means of financial support. From March 1987 through September 1989, Ruth and Dennis received a monthly military allotment from the army through William in the sum of $275. In September 1989, Ruth and Dennis were divorced. Dennis does not provide financial support to Ruth. Ruth and Stacey now live with Ruth’s sister, Rose Beatty, and her two children. Rose’s husband passed away in 1986. Ruth pays no rent, but instead cleans the house for Rose. Ruth currently earns $100 a week cleaning and ironing. She does not receive any support from Connie or William. She intends to seek full-time employment in the future.

The undisputed testimony at trial was that Stacey was happy and well taken care of by Ruth. Stacey refers to Ruth as “Mommy.” The guardian ad litem recommended that custody of Stacey be awarded to Ruth.

Ruth initially asserts that the trial court erred in applying the superior-right doctrine after she had met the standing requirements of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 601(b)(2)). This section provides:

“§601. Jurisdiction — Commencement of Proceeding. ***
(b) A child custody proceeding is commenced in the court:
* * *
(2) 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.”

Ruth argues that once she fulfilled the statutory rights, she and the natural parent were on equal ground, and the superior-rights doctrine was inapplicable. We disagree.

“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.” (In re Custody of Townsend (1981), 86 Ill. 2d 502, 508, 427 N.E.2d 1231,1234.)

The trial court need not find that the natural parent is unfit or has forfeited her custodial rights before awarding custody to a nonparent if the best interests of the child will be served. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 208-09, 247 N.E.2d 417, 422.)

“[A] third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child’s best interests that the third party be awarded the care, custody and control of the minor.” Townsend, 86 Ill. 2d at 510-11, 427 N.E.2d at 1236.

The above-cited cases indicate that Ruth’s compliance with section 601(b)(2) did not place her on equal ground with Connie. Connie was entitled to the presumption that awarding her custody would serve the best interests of Stacey.

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Bluebook (online)
577 N.E.2d 811, 217 Ill. App. 3d 661, 160 Ill. Dec. 486, 1991 Ill. App. LEXIS 1433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-potts-illappct-1991.