After minor’s mother died, maternal grandmother and father each filed their own petition for the minor’s custody. The child had lived with mother. Trial court initially ordered temporary custody to grandmother. It later awarded permanent custody to father (and substantial visitation to grandmother). Grandmother filed her petition for full custody of the minor.
Father said that grandmother had no place in the court since the child was with one of his parents. The law provides that a third person has the right (standing) to come before the court for custody as long as the child is not in the physical custody of either parent. Now, the child was with father. So, father argued that grandmother had no place in the custody court any longer.
The trial court agreed that grandmother did not have standing to be before the court on custody. The question for the appellate court was, ‘As a matter of law, is the grandmother in this case required to reestablish standing in order to modify the previous custody order?’ In that previous order, the Court said she had standing. The Court had ordered temporary custody to her. Also, the Court had granted substantial visitation to grandmother when permanent custody was awarded to the child’s father
The appellate court answered “no.” Whether grandmother had standing depends on her status when she first started the action for custody. At the time she initiated the action for custody, she did have standing because the minor was not in the physical custody of either parent. The child had lived with his mother. Mother died. The child had not been living with father when mother died. Grandmother had the absolute right to petition for custody when mother died. That same right continues now, even though father has the physical custody of the child.
The grandmother has the right to stand before the court with her petition for full custody of the minor. The court will listen to her side of the case, and that of the father.
Lee v. Fosdick, 2014 IL App (4th) 130939.
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