author: JUSTICE GREEN JUSTICE COOK,

text:
      In re A.K., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Randy Kirchner, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0846
    Argued May 24, 1993.
    Opinion filed September 16, 1993.

      COOK, J., dissenting.
    Randell S. Morgan (argued), of Kinate & Morgan, P.C., of Fairbury, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Paul G. Mason, of Fairbury, guardian ad litem.

   JUSTICE GREEN

delivered the opinion of the court:

This case concerns the status of a husband in regard to a child born to his wife during the marriage when his parentage of the child is later contested. The legal questions involved are of increased importance because scientific tests are now available which can determine parentage with a very high degree of accuracy when administered at any time. Section 8(a)(2) of the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2)) bars any action to determine parentage by any person other than the child when brought more than two years after the birth of the child, but section 8(a)(1) thereof (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(1)) does not bar most actions brought on behalf of the child until two years after the child attains majority. Here the issue has been raised in an action under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.), section 2 — 13(1) which provides for actions brought “in respect of” certain minors (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(1)).

On July 2, 1988, while a proceeding to dissolve the marriage of Brenda and Randy Kirchner was in progress in the circuit court of Livingston County, Brenda’s grandmother filed a petition under the Act in that court. The petition alleged that A.K., age two years and seven months, the only child born to Brenda during the marriage, was an abused child (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(2)(i)) because Brenda had struck and choked the child and Randy was “not an appropriate custodian.” Both Brenda and Randy were joined as respondent parents. On the date set for an adjudicatory hearing, the court noted that frequent mention had been made that James Bennett, rather than Randy, was the child’s father. The court then set the matter over for a determination of the child’s paternal parentage.

An amended petition was filed naming Bennett as the father of A.K., and Bennett was served with summons. An adjudicatory hearing was then held on October 27, 1988, and the court found that A.K. was an abused minor. Then, after a dispositional hearing, an order was entered on December 20, 1988, finding Bennett was the biological father of A.K. However, the court ruled that Randy had “standing to appear and participate in [the] proceedings as the minor child’s stepfather.” After a further hearing, an order was entered on February 8, 1989, making A.K. a ward of the court and placing him in the custody and under the guardianship of the Illinois Department of Children and Family Services (DCFS). Randy and Brenda were granted some rights of supervised visitation by that order.

On May 24, 1990, Bennett executed a surrender of his parental rights in regard to A.K., and that document was placed on file in the juvenile case. (See Ill. Rev. Stat. 1989, ch. 37, par. 802 — 29(2).) On September 17, 1990, DCFS filed a supplemental petition in the juvenile proceeding requesting the termination of the rights of Brenda and Randy as to A.K. Later DCFS filed a motion to strike reference to Randy in that petition and to insert there the name of Bennett as the father of A.K. The motion further stated that Randy was not a necessary party because the court had determined he was not the biological father of A.K. On December 14, 1990, the court ordered that Randy be dismissed from the proceedings. After the denial of a rehearing of the order, Randy has appealed, apparently pursuant to Supreme Court Rule 307(a)(6) (134 Ill. 2d R. 307(a)(6)).

Randy presents a twofold argument on appeal. Brenda had alleged in the dissolution proceeding that Randy was not the father of A.K. Before that issue was decided in the juvenile case, the court ruled in the dissolution proceeding that the two-year limitation of section 8(a)(2) of the Parentage Act barred Brenda from making that claim. Randy maintained in the juvenile proceeding and now asserts on appeal that res judicata (collateral estoppel) effect should be given to that ruling in the dissolution proceeding, thus preventing the court in the juvenile proceeding from passing on the question of his parentage of A.K. Randy also contends that Brenda fraudulently withheld from him that he was not' A.K.’s father, and that in reliance thereon, he developed a relationship with A.K. such that he should be treated as a parent in equity. Under the record here, we affirm the judgment of the circuit court but conclude that the proper practice would have been to permit Randy to remain in the juvenile proceeding with opportunity to be heard until an order final as to all parties was entered.

The decision in Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609, is determinative of Randy’s first contention. There, action was brought under the Parentage Act on behalf of a minor child against the person who was her mother’s husband when she was born and against her mother’s later husband, seeking to have the latter determined to be her natural father and for other relief. The circuit court held that the action was barred on collateral estoppel and res judicata grounds, because in the uncontested dissolution case between the child’s mother and her husband at the time of the child’s birth, the court found that the husband was the child’s natural father.

In Simcox, the supreme court recognized the fully established rule that precludes an issue which has necessarily been decided by a court of competent jurisdiction from being relitigated later in a different action between the same parties or their privies. However, the Simcox court held that no bar of res judicata nature prevented that child from contesting her parentage as she was not a party to the dissolution proceedings where ruling was made on that issue, nor was she privy to a party in that case. Justice Ryan concurred specially, noting that no guardian ad litem had been appointed for the child in the dissolution proceeding. He stated that he was not deciding how he would rule if one had been appointed. (Simcox, 131 Ill. 2d at 499, 546 N.E.2d at 612 (Ryan, J., specially concurring).) Here, a guardian ad litem was appointed for A.K. in the dissolution proceeding, but we do not interpret the majority opinion in Simcox to indicate that would make a difference. Our decision here is consistent with decisions of the second district in In re Parentage of Mayberry (1991), 222 Ill. App. 3d 1008, 584 N.E.2d 533, this district in Department of Public Aid ex rel. Skelton v. Liesman (1991), 218 Ill. App. 3d 437, 578 N.E.2d 310, and that of the first district in Maller v. Cohen (1988), 176 Ill. App. 3d 987, 531 N.E.2d 1029. In each of those cases, a determination of parentage in an action brought by or on behalf of a mother or her privy was held not to be binding upon subsequent actions by the child whose parentage was in issue.

The thrust of Randy’s second contention is that he should be treated as an “equitable parent” of A.K. This argument requires careful study. Consider a situation where a child is born to a man’s wife during their marriage and lives with the couple for 15 years when the mother becomes an unfit parent and the marriage fails. If a neglect or abuse petition is filed pursuant to the Act and the husband is shown not to be the natural father of the child, is the father to be dismissed from the juvenile proceeding without opportunity to be heard as to the disposition of the child, even though he has been a good father figure for the child throughout the child’s life? Randy maintains that fairness requires that such a stepfather be treated as an “equitable parent.” Some States have adopted such a rule.

In the case of In re Adoption of Young (1976), 469 Pa. 141, 364 A.2d 1307, the court held the natural mother was equitably estopped from seeking to terminate the parental relationship between her former husband and the child born during the marriage. The court reasoned petitioner had lived with her former husband five months following the birth of the child, and after separation from him, accepted child support from him. Moreover, a separation agreement referred to the former husband as the father of the child, and the final order awarding custody to the petitioner also acknowledged the former husband as the natural father of the child. (Young, 469 Pa. at 150-52, 364 A.2d at 1312-13.) The court recognized the former husband maintained and lovingly carried out the duties of a father since the child’s birth and was entitled to maintain the relationship. Since the former husband’s parental rights were not terminated, the absence of his consent to the adoption of the child operated to preclude the adoption even in the presence of the mother’s consent. Young, 469 Pa. at 152-54, 364 A.2d at 1313-14.

In Atkinson v. Atkinson (1987), 160 Mich. App. 601, 408 N.W.2d 516, the Michigan court was faced with a similar situation and adopted the theory of “equitable parent.” The Michigan Court of Appeals held that the wife may establish the nonpaternity of the husband through blood tests, but that, notwithstanding the fact that the husband was not the biological father, he may acquire rights of paternity under the “equitable parent” theory. (Atkinson, 160 Mich. App. at 608-09, 408 N.W.2d at 517.) The court reversed the trial court’s decision to treat the husband as a third party when deciding custody and visitation, and in doing so, it stated:

“[W]e adopt the doctrine of ‘equitable parent’ and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.” Atkinson, 160 Mich. App. at 608-09, 408 N.W.2d at 519.

See also In re Paternity of D.L.H. (Wis. Ct. App. 1987), 142 Wis. 2d 606, 419 N.W.2d 283.

As the circuit court explained in making its ruling, the theory of making a man who is not the biological father of a child an “equitable parent” under certain appealing circumstances has never been recognized in Illinois. Cases cited by Randy as indicating otherwise are not in point. In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 544 N.E.2d 1293, concerns the ability of a nonparent to receive custody over a natural parent who does not have custody (see Ill. Rev. Stat. 1987, ch. 40, pars. 601(b)(2), 602). In In re Ashley K. (1991), 212 Ill. App. 3d 849, 571 N.E.2d 905, the appellate court held that the circuit court abused its discretion by changing custody of a child from a foster parent to a biological parent. Neither case concerns rights of a presumed father when determination is made that he is not the natural father of a child. To adopt the rule suggested would make inroads upon the stated public policy that the “superior right[s] of *** natural parent[s] [are] recognized *** in our statutory law.” (In re Custody of Peterson (1986), 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152.) While not adopting the “equitable parent” theory, we do determine that Randy had more statutory rights than he was given.

Section 5(a)(1) of the Parentage Act states that “[a] man is presumed to be the natural father of a child” if (1) “he and the child’s natural mother” have been married; and (2) “the child is born *** during such marriage.” (Ill. Rev. Stat. 1987, ch. 40, par. 2505(a)(1).) The presumption may be “rebutted *** by clear and convincing evidence” (Ill. Rev. Stat. 1987, ch. 40, par. 2505(b)). Section 1 — 3(13) of the Act includes in the definition of the term “ ‘[p]arent’ ” a “father whose paternity is presumed” (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 3(13)). Section 2 — 13(2) of the Act makes “parents” and guardians or “persons having custody or control” of a minor to be named as respondents to a petition or supplemental petition in regard to a minor filed under the Act. Ill. Rev. Stat. 1987, ch. 37, par. 802— 13(2).

At the time of the initiation of the juvenile proceedings Randy was a “parent” of A.K. within the meaning of the Act because his parentage was presumed. He was properly made a party respondent to the proceedings. Section 1 — 5(1) of the Act, which speaks of the rights of parties to proceedings under the Act, states in part:

“Except as provided in this Section and paragraph (2) of Sections 2 — 22, 3 — 23, 4 — 20 or 5 — 22, the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5(1).

The stated exceptions to section 1 — 5(1) of the Act are very limited and are not involved here. Section 1 — 5(2) of the Act then provides that “any current or previously appointed foster parent or representative of an agency or association interested in the minor has the right to be heard by the court, but does not thereby become a party to the proceeding.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5(2).) No case has been called to our attention defining the meaning of this inference of a right merely to be heard. We conclude that the possessor of such a right cannot complain of the ultimate judgment entered as long as he or she has been heard.

The Act “is not entirely clear in regard to the question of who is entitled to participate in *** dependency proceeding[s] brought under the Act.” (In re Winks (1986), 150 Ill. App. 3d 657, 661, 502 N.E.2d 35, 38.) The legislative scheme we have described is silent as to the position of a presumed father once the presumption is rebutted. One interpretation would be that he no longer has any rights in regard to the case and cannot continue either as a party or as a person having a right to be heard. The circuit court did not adopt this position until the supplemental petition for appointment of a guardian with power to consent to an adoption was filed. If the formerly presumed father is cut out of participation even at this late stage, despite the fact that he may have been the father figure for a child for many years with both he and the child assuming the existence of a parent-child relationship, he would then be denied the rights which a guardian, legal custodian, responsible relative, previously appointed (but no longer serving) foster parent, or even an agency interested in the welfare of the child might have. This makes little sense.

Clearly, the statutory scheme is ambiguous in regard to the status of one in Randy’s position when the presumption of parentage is rebutted. When the meaning of a statute is in doubt, the court must ascertain the legislative intent and, in doing so, “consider the entire statute as well as the evil to be remedied and the object and purpose to be attained.” (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 14, 585 N.E.2d 51, 57; see also City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364, 522 N.E.2d 1219, 1223.) Application of this rule to the statutory scheme involved here persuades us that one in Randy’s position should not be dismissed from the case until it is concluded.

In a proceeding under section 2 — 29 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 29) or its predecessor, the object and purpose to be obtained is a determination as to whether the child’s parents have given up their parental rights or have been found to be unfit parents and, if so, whether the best interests of the minor are served by appointment of a guardian with power to consent to adoption of the child. (In re Johnson (1977), 54 Ill. App. 3d 627, 631, 370 N.E.2d 560, 562.) The evil to be remedied is that which a child suffers when it is not in an adequate permanent home setting with adequate parent figures.

In determining the best interests of the child, a man married to the child’s mother at the time of its birth would be likely to have important information to provide to the court as to the best interest of the minor after the rights of the natural parents have been terminated. This would be especially true when this formerly purported father had lived with the mother and the child ostensibly as the child’s father for an extended period of time. Strong bonds may have developed between that man and the child which should be considered in regard to the child’s future if the formerly purported father is a good person. Another aspect of the need for continued participation by that person is illustrated by the facts of this case. The marriage of Brenda and Randy had broken down. The petitioner was Brenda’s grandmother. Although the State’s Attorney representing the petitioner and the guardian ad litem or attorney for the child are under a duty to look out for the best interests of the minor, the continued participation of the one who was presumed to be the child’s father can give the court a more balanced picture of the situation.

Any formerly presumed father who might qualify under the law of other States as an “equitable parent” would benefit by remaining in a section 2 — 29 proceeding until all issues are resolved because he would have an opportunity to persuade the court to frame its dispositional order in such a way as to be consistent with any ability he might have to adopt the child. By keeping such a person in the section 2 — 29 proceeding to the end, he obtains some of the protection which the “equitable parent” rule might give him while, at the same time, the State is relieved of the burden of establishing his unfitness when the child’s best interests appear not to include any role for the formerly presumed father. Thus, our determination that once the presumed father is brought into the section 2 — 29 proceeding he can remain in the proceeding after the presumption of parentage is rebutted serves not only to protect that individual but also to promote the stated legislative purpose of serving the best interests of the child.

When we state that a formerly presumed father is entitled to remain in the case, we mean that he should be treated as a party entitled to notice of hearing and to present evidence, cross-examine witnesses and make argument. He would have a right to appeal, but on appeal he could only complain of a denial of the foregoing rights.

While we hold that the circuit court should not have dismissed Randy from the case, we recognize that the circuit court proceeded carefidly, had no precedent to guide it, and kept Randy in the case for quite awhile after his parentage was negated. Upon the record of the case we are assured that Randy suffered no prejudice by being dismissed from the case. The record showed that in 1987, he was convicted of two counts of battery committed against a seven-year-old child. In 1985, he was placed on probation for one year for disorderly conduct. As a juvenile he had been found to be neglected and in need of supervision because of sexual contacts between him and minors. The report of a psychiatric examination indicated he was mildly retarded and in need of therapy to handle his sexual acting out. The report also indicated he displayed emotional immaturity and an inability to exercise proper parenting skills which was due, in part, to his mental limitations. The marriage lasted less than three years. We are satisfied that Randy’s further participation in the section 2 — 29 proceedings would not have changed the result or enabled him to have a closer relationship to A.K.

The dismissal of Randy from the juvenile proceedings did not result in reversible error. Accordingly, we affirm the order which dismissed him from those proceedings.

Affirmed.

STEIGMANN, P.J., concurs.

JUSTICE COOK,

dissenting:

The majority has given careful thought to this case, as did the trial court. I respectfully take a different view based on the language of the Act and the important policy considerations involved. The majority holds that Randy should have been allowed to participate (but was not prejudiced here by nonparticipation). I would go further and require the State to prove Randy unfit, as would be required if he were a biological father.

The importance of the familial relationship, both to the individuals involved and to society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role the relationship plays in promoting a way of life through the instruction of children — as well as from the fact of blood relationship. (Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 844, 53 L. Ed. 2d 14, 35, 97 S. Ct. 2094, 2109.) Disruption of the continuity of relationship between the child and his “psychological parents” is almost certain to adversely affect the child’s development. (Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 362, 373 N.E.2d 47, 52.) Assume a situation, along the lines of the majority’s hypothetical, where one individual is the biological father of a 15-year-old child, but a second individual believes himself to be, and is believed by the child to be, the biological father. The second individual does everything that parents do for children. The first individual does not even know the child exists. Which of these is the child’s “parent”?

The answer is found in the Act.

“ ‘Parent’ means the father or mother of a child and includes any adoptive parent. It also includes the father whose paternity is presumed or has been established under the law of this or another jurisdiction.” (Ill. Rev. Stat. 1987, ch. 37, par. 801-3(13).)

The Act by definition establishes that respondent is a “parent,” and he should be treated as one. I see nothing in the Act which allows the State to rebut the presumption of paternity, or attack a judgment establishing paternity, just because one of those options would be easier than establishing unfitness. Because of the likelihood that a presumed parent will have the same bond with the child as would a biological parent, the State should be required to prove unfitness, not nonpaternity, before it terminates parental rights. The majority opinion reads the presumed parent out of the Act’s definition. Perhaps all termination of parental rights cases will now begin with a blood test.

The situation presented by this case is a narrow one, one not presented in most cases involving stepfathers or foster fathers. Stepparents apparently have no right to be proved unfit. (In re Adoption of Weller (1977), 47 Ill. App. 3d 492, 362 N.E.2d 73 (construing the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 — 1 et seq.)).) Foster parents, no matter how close their relationship with the child, need not be proved unfit. Foster parents have the right to be heard in a proceeding under the Act, but are not parties. Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5; see Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 582, 538 N.E.2d 892, 897 (there can be no expectation that foster placement will continue to exist).

An apparent father, such as Randy, is more like a biological father, or an adoptive father, than like a stepfather or foster father. In the absence of statute, a stepfather has no obligation to support the child, except perhaps where the stepchild believed the stepfather was his father and the stepfather encouraged that belief. An apparent father, such as Randy, will by the nature of things be required to pay child support until he suspects he is not the father; and even then, he will be required to pay child support if he does not legally contest paternity within two years. (In re Marriage of Beckett (1990), 195 Ill. App. 3d 424, 428, 552 N.E.2d 375, 378.) A stepparent who seeks to maintain the parent-child relationship can be faulted for not adopting the child, at least where adoption was possible. Randy cannot be faulted for failure to adopt A.K. because he never had reason to suspect that such a procedure was necessary.

The majority opinion suggests that to adopt the “equitable parent” concept “would make inroads upon the stated public policy that the ‘superior right[s] of *** natural parentfs] [are] recognized *** in our statutory law,’ ” quoting Peterson. (250 Ill. App. 3d at 986.) Peterson involved a dispute between a father and maternal grandparents and cannot be read to express a preference for a biological father who had never seen the child, over an individual who thought he was the father and actually raised the child. The majority opinion does not secure rights to biological fathers. It only takes rights away from apparent fathers.

Biological relationships are not the exclusive determination of the existence of a “family” for purposes of the due process clause. (Smith, 431 U.S. at 843, 53 L. Ed. 2d at 34, 97 S. Ct. at 2109.) “The scope of these rights extends beyond natural parents. The ‘parent’ in Prince itself, for example, was the child’s aunt and legal custodian.” (Smith, 431 U.S. at 843 n.49, 53 L. Ed. 2d at 34 n.49, 97 S. Ct. at 2109 n.49, citing Prince v. Massachusetts (1944), 321 U.S. 158, 159, 166, 88 L. Ed. 645, 649, 652, 64 S. Ct. 438, 439, 442 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”).) Where a child has been placed with a man as an infant, has never known his natural father, and has remained continuously for several years in the care of the same man, it is natural that the man should hold the same place in the emotional life of the child, and fulfill the same socializing functions, as a natural father. (See Smith, 431 U.S. at 844, 53 L. Ed. 2d at 35, 97 S. Ct. at 2110 (speaking of foster parents).) This is even more true when both the child and the man believe that the man is the biological father. When it is known that the man is not the biological father, at least the man and the child can attempt to control their relationship.

The State argues that previous cases have limited the term “parent” to mean a biological parent, and excluded the husband of the natural mother. The cases cited, however, were decided under the Adoption Act, and the husbands there at all times knew they were not biological fathers. (In re Adoption of McFadyen (1982), 108 Ill. App. 3d 329, 438 N.E.2d 1362; Weller, 47 Ill. App. 3d 492, 362 N.E.2d 73.) The statute has changed significantly since these two cases were decided. The language that the definition of “parent” includes “the father whose paternity is presumed or has been established under the law of this or another jurisdiction” (new material indicated by italics) was not added to the Act until 1985. Pub. Act 83-1372, §24, eff. July 1, 1985 (1984 Ill. Laws 2627, 2643).

The State argues we should look to the definition of “parent” in the Adoption Act (both McFadyen and Weller were decided under the Adoption Act), not the definition found in the Act. The Adoption Act defines “parent” as “the father or mother of a legitimate or illegitimate child.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(E).) The question may be asked why different rules should apply under the Act and the Adoption Act. (See Johnson, 182 Ill. App. 3d at 581, 538 N.E.2d at 897 (foster parent entitled to notice under Act but not under Adoption Act).) We need not attempt to answer that question here. The present case is clearly one brought under the Act, the Act appropriately resolves this issue, and the Act’s definition of “parent” should be applied. Even were we to apply the Adoption Act definition (that a “parent” is a “father”), the dictionary definition of “father” includes “one related to another in a way suggesting that of father to child.” (Webster’s New Collegiate Dictionary 418 (1976).) The word “father” is one of broad general meaning, which would include all sorts of individuals; we speak of stepfathers and foster fathers. A presumed father is a “father.” (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 3(13) (“the father whose paternity is presumed”).) If the legislature had intended a more narrow definition surely that intent would be found somewhere in the statute.

There has also been a judgment establishing paternity in this case, in the dissolution of marriage action filed by Brenda. Children are generally not barred by issues decided in their parents’ dissolution proceedings, because they are not parties or privies to such actions. (Simcox, 131 Ill. 2d 491, 546 N.E.2d 609.) A.K., however, was a party to the dissolution action here, because A.K. was represented by a guardian ad litem. Courts should be careful when they make children parties to litigation which would not otherwise be binding upon them. It could be argued that a final order had never been entered in the dissolution case at the time the juvenile court considered the question of paternity. The issue has not been raised by the parties, however, and I assume there was a final order here.

The State argues that it was not a party to the dissolution of marriage action and was not bound by any judgment in that action. The Parentage Act gives public agencies a much longer time to bring paternity actions than others are allowed, up to two years after the agency has ceased to provide assistance to the child. (See Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(1).) This case does not involve an agency bringing an action in its own right, for example to collect past-due child support. Assuming that section 8(a)(1) of the Parentage Act would allow the State’s Attorney to file a nonpaternity action (as opposed to an action to establish paternity) outside the standard two-year statute of limitations in a case like this, the State’s Attorney should be required to respect the best interests of the child in bringing the action. It is generally in the best interests of the child that questions of paternity be resolved as early as possible, and that once resolved the issue not be disturbed in the absence of extremely compelling circumstances. See In re Marriage of O’Brien (1993), 247 Ill. App. 3d 745, 749-50.

Under prior versions of the Paternity Act (see Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) it would not have been possible to show that a husband who was supporting a child of the marriage was not in fact the father of that child. (Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 117, 427 N.E.2d 974, 982.) Habeas corpus or declaratory judgment actions might be available, but were disfavored. The Parentage Act for the first time specifically recognized an action to establish nonpaternity, making it subject to the same short statute of limitations which applied to other such actions. (See Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(3).) The legislature may have recognized that making nonpaternity actions easier could cause problems for apparent fathers, such as the problem addressed in this case. The same public act which adopted the Parentage Act also changed the Act to define “parent” to include “the father whose paternity is presumed.” (New material indicated by italics.) Pub. Act 83 — 1372, §24, eff. July 1, 1985 (1984 Ill. Laws 2627, 2643).

The trial court here required a paternity hearing on its own motion. The trial court was concerned that if someone other than Randy was the biological father that individual could subsequently upset any placement of A.K. The trial court’s concern is a real one. The problems caused by searching out biological fathers who have taken no interest in a child, just so their rights may be terminated, has led to major criticism of the Supreme Court’s decision in Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208. See 2 H. Clark, The Law of Domestic Relations in the United States §21.2, at 572-81 (2d ed. 1987).

Apart from that concern, there seems to be an assumption in the majority opinion that if a paternity action can be brought, it should be brought. (250 Ill. App. 3d at 982-83.) I reject that assumption. In In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 418, 531 N.E.2d 97, 100, a mother sought to bring a paternity action on behalf of the child. The court rejected the idea that an action which “[sought] to deprive the child of the only father he has known” could be considered brought on behalf of the child. (Ingram, 176 Ill. App. 3d at 418, 531 N.E.2d at 100.) A determination of a child’s biological father may not always be in a child’s best interests. (In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 823, 558 N.E.2d 1355, 1362.) A trial court has discretion not to appoint a guardian ad litem who could file a paternity action on behalf of the child (Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 788, 541 N.E.2d 1159, 1165-66), and a guardian ad litem once appointed may choose not to file a paternity action. The court’s ruling on paternity here may have been viewed as a means of shortening the termination of parental rights case. However, until Randy was found to be unfit it could not be said that depriving A.K. of the only father he had ever known was in A.K.'s best interests.

It may be argued that even after parental rights have been terminated the decision who should adopt the child will be made on the basis of the child’s best interests, which is sufficient protection for someone in Randy’s position. A court does have the power to award custody to someone like Randy after parental rights have been terminated, but that possibility is not enough. That possibility would not suffice for a biological father who actually raised a child, and should not be enough for an apparent father who actually raised a child. An apparent father is more important to a child than a biological father whom the child does not know exists. These determinations are “unusually open to the subjective values of the judge.” (Santosky v. Kramer (1982), 455 U.S. 745, 762, 71 L. Ed. 2d 599, 612, 102 S. Ct. 1388, 1399.) Although the majority states that if an apparent father is allowed to remain in the case “he would have an opportunity to persuade the court to frame its dispositional order in such a way as to be consistent with any ability he might have to adopt the child” (250 Ill. App. 3d at 989), the statute as construed by the majority does not afford an apparent father any priority.

Although critical of the trial court’s dismissal of respondent from the case, the majority concludes that respondent suffered no prejudice because of (1) respondent’s 1987 conviction of battery against a seven-year-old child, (2) his 1985 probation for disorderly conduct, and (3) his juvenile record. It appears the trial court took judicial notice of those matters. Respondent was certainly never afforded any type of hearing, and we should not attempt to shore up the trial court’s ruling on the basis of any such one-sided evidence. It may be that respondent is less than desirable as a parent, or even that he is unfit. The rule which the State argues for, however, that apparent fathers who are not biological fathers may be dismissed from a termination of parental rights case at the earliest opportunity, would apply to good fathers as well as bad.

In dissolution cases a stepparent with close ties to a child has been awarded custody in preference to a biological parent who had not had custody for many years. (See Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293.) As the majority points out, dissolution of marriage cases are different from termination of parental rights cases. In dissolution cases, the court must select a custodian, often being forced to choose between two very capable and loving parents. In termination cases the court deals with a child in trouble, and parents who are so questionable that the court must decide whether to completely terminate the relationship between parent and child. The fact remains that in Carey a stepmother with whom the child had resided was preferred as a custodian over the child’s natural mother. If a petition to terminate parental rights had been filed in Carey, under the trial court’s ruling here the preferred custodian, the stepmother, could not have been involved in the case. Under the rule of the majority, the stepmother would not have fared much better, being not much more than a bystander.

The State cites In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379, for the proposition that equitable adoption is not recognized in Illinois. Edwards involved foster parents who attempted to sue under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2) when the child was struck by a car and killed. The foster parents had not completed the steps for adoption, but fully intended to adopt, and had treated the child as their own. The court rejected their claim on the basis the Wrongful Death Act (not the Act) was to be strictly construed, but noted that in other States when actions were brought by children they had been allowed to sue as an “adopted” child and the adopting parent had been estopped from denying that he assumed the obligation. Edwards noted that on that basis in Illinois a child had been allowed to inherit from a foster parent. (Edwards, 106 Ill. App. 3d at 638, 435 N.E.2d at 1381-82, citing Dixon National Bank v. Neal (1955), 5 Ill. 2d 328, 331, 125 N.E.2d 463, 465.) The rule that a parent must be proved unfit before parental rights are terminated generally works in favor of the best interests of the child. With all their faults and mistakes parents will generally be more successful in caring for their children than strangers or agencies of the State. Edwards is not authority for the proposition that equitable adoption should not be recognized in a case like this one.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    TRACEY NAYLOR, Plaintiff-Appellant, v. RANDAL KINDRED, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0411
    Argued January 13, 1993.
    Opinion filed September 9, 1993.

      James W. Ackerman (argued), of Springfield, for appellant.
    Richard D. Frazier (argued) and Frederick J. Schlosser, both of Metnick, Barewin, Wise & Cherry, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Tracey Naylor appeals the decision of the circuit court of Logan County granting the motion of Randal Kindred (Randy) for modification of custody of their minor child, Cassandra. Tracey alleges the trial court erred in modifying custody in the absence of a showing of serious endangerment. We disagree and affirm.

I. Facts

Tracey and Randy began dating in late December 1988. A few weeks later, the second or third week of January 1989, Tracey told Randy she was pregnant. On March 1, 1989, Tracey and Randy began living together, along with Tracey’s two other children. They broke up and moved apart the following month. Randy was not certain whether the child Tracey was carrying was his, and did not maintain contact with Tracey during her pregnancy. The baby, Cassandra Naylor, was bom in September 1989. In January 1990, Tracey contacted Randy, told him the baby was his, and stated she would like him to see Cassandra.

In 1989 and 1990, Tracey was a recipient of public aid. In October 1990, the Department of Public Aid (Department) filed a petition to have Randy adjudicated the father of Cassandra, ordered to support Cassandra, and ordered to reimburse the Department of Public Aid for monies it had expended in support of Cassandra. In December 1990, Randy and Tracey entered into an agreement to submit to blood tests. The blood tests revealed Randy was the father of Cassandra. On March 13, 1991, the court entered an order finding Randy was the father of Cassandra and ordering him to pay child support and reimburse the Department for sums expended for the support of Cassandra. On May 16, 1991, Randy and Tracey entered into an agreed order regarding Randy’s visitation rights, and the court ordered Randy could claim Cassandra as a dependent for Federal income tax purposes.

In August or September 1991, Tracey moved to Georgia, where her sister lived, and married a man whom she had known for one month. Randy tried to discover Tracey’s whereabouts to maintain contact with Cassandra, but her family would not provide him with her address or phone number. On December 6, 1991, Randy filed a petition for a rule to show cause, alleging Tracey had denied him his visitation rights by removing Cassandra from the State.

On December 20, 1991, Tracey was arrested. Tracey had been convicted of Federal welfare fraud several years earlier, and placed on probation. She violated her probation by leaving the State of Illinois without requesting permission of, or notifying, her probation officer. Beverly Parker, Tracey’s sister who lived in Georgia, took care of Tracey’s three children after Tracey’s arrest. Tracey signed a statement purporting to grant temporary guardianship of her three children to Parker, and stating that in the event of her incarceration Tracey’s mother, Jean Naylor, and sister, Penny Patton, were to have joint custody and guardianship of the children. In this document, Tracey stated under no circumstances was Randy to obtain custody of Cassandra.

On January 15, 1992, Tracey was sentenced to two years’ incarceration, with credit for time served. Under the Federal sentencing guidelines in effect at the time, Tracey could receive good-time credit which, if earned, would permit her release in eight months. Cassandra and her half-brother and half-sister were cared for by Parker, and then were brought to Tracey’s mother in Illinois. After Tracey was arrested, Tracey’s husband went to Florida and was still there at the time of the custody hearing.

On February 13, 1992, Randy filed a petition for change of custody under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1991, ch. 40, par. 610), alleging Tracey had denied his right to visitation, removed Cassandra from the State, been arrested, was incarcerated, and it would be in the best interests of Cassandra that he be granted custody. On March 27, 1992, Tracey filed a motion to remove Cassandra from Illinois, alleging she currently possessed legal and physical custody of Cassandra, although she was incarcerated, and it would be in Cassandra’s best interest to be cared for by Tracey’s sister in Georgia during her incarceration. Ill. Rev. Stat. 1991, ch. 40, par. 609.

On March 30, 1992, the court held a hearing on the petition for modification and petition for removal. At that time, Tracey was incarcerated in a Federal penitentiary in Texas. At the hearing, Randy acknowledged that he was a recovering alcoholic. After he and Tracey broke up, he sought treatment for alcoholism and cannabis dependency. Randy testified he had not consumed any alcohol or used any controlled substances for three years. Randy testified he lives three miles from his parents and two miles from Jean. Randy additionally testified he thought it was important Cassandra remain in contact with Tracey and her family, and especially with her half-siblings. The testimony indicated Randy visited with Cassandra prior to the custody hearing and she was responsive to Randy and his parents.

Randy’s parents testified if Randy was granted custody of Cassandra, they would assist Randy and care for Cassandra while he was at work. Randy’s parents testified they would facilitate visitation between Cassandra and her mother and half-siblings. Randy’s mother, Helen Kindred, testified she and her husband had established a relationship with Cassandra’s half-siblings when Randy and Tracey had been living together. Cassandra’s half-sister, Katy, called Randy’s parents Grandma and Grandpa, and had spent the night at their house and gone to church with them.

Parker testified she had three children of her own and would care for Cassandra and Tracey’s other children while Tracey was incarcerated. Parker testified Cassandra had established a good relationship with her children, and that Cassandra called Parker “mama,” and her husband “Uncle LeeWee.”

Jean Naylor, Tracey's mother, testified she had raised five children of her own and would care for Cassandra if Cassandra was not permitted to live in Georgia with Parker. Jean testified that she knew when Tracey went to Georgia that Tracey was violating the custody order granting Randy visitation, but she took no steps to ensure Randy could exercise his visitation rights because she did not feel it was her duty. Jean testified she was contacted by Randy’s attorney and told him she did not have any idea where Tracey was. The attorney gave her his telephone number and asked her to call him when she found out where Tracey was. Jean testified she knew Tracey was moving to Moultrie, Georgia, but did not know her address. Jean additionally testified that Parker told her Tracey and her new husband were living in Moultrie, but Tracey, who was not on good terms with Jean, did not want Jean to know her address.

Donald Gottschalk, a clinical psychologist, testified he met Jean, Parker, Cassandra, and Cassandra’s half-siblings. Gottschalk observed Cassandra interacting with her half-siblings in two 10- to 15-minute sessions, and administered a test to Cassandra during a 45-minute interview. As a result of the test, Gottschalk concluded Cassandra had a preference for a maternal parent figure and a strong identification with her half-siblings. Gottschalk interviewed Jean for 45 minutes and Parker for one hour. Gottschalk also administered a test to Parker and determined she was free from any psychological disturbance or any problem that would prevent good parenting. Gottschalk testified it would be traumatic for Cassandra to be removed from her half-siblings. Gottschalk testified he determined Cassandra was ideally placed with Parker.

On cross-examination, Gottschalk testified his first contact with this family occurred when Jean called him and requested an estimate of how much his evaluation would cost. He gave her an estimate for doing an evaluation and writing up a report. Gottschalk testified there are three levels of examinations. The first level of examination involved evaluating the child. The second level is evaluating the child and one or both parents, and the third level is evaluating the child and seeing the child in both parents’ homes. Gottschalk admitted he had not interviewed Randy, Parker’s husband, or Parker’s children. Gottschalk acknowledged a well-known psychologist had noted in his treatise it would be an ethical violation to draw any conclusions about which parent would be the better custodial parent unless one had assessed both parents. Gottschalk also acknowledged the same well-known psychologist stated, in his treatise, 16 hours should be the minimum amount of time for a study involving two parents and one child. However, Gottschalk stated this would be the minimum amount of time spent in a level three evaluation, and although a level three evaluation would have given him a better basis for his evaluation in this case, he does what he is hired to do.

In closing argument, Tracey’s attorney for the first time alleged the proper standard in determining custody was not the best interests of the child standard alone, but the serious endangerment standard. Randy’s attorney argued under the second district’s decision in In re Marriage of Oertel (1991), 216 Ill. App. 3d 806, 576 N.E.2d 435, Randy need only establish a change in custody would be in Cassandra’s best interests. The circuit court ruled serious endangerment need not be established, rather only changed circumstances, and found there had been clear and convincing evidence of a change in circumstances, and custody should be modified in favor of Randy. Specifically, the court found Tracey was legally incapacitated to care for Cassandra due to her incarceration, and there is a presumption in Illinois that a biological parent is entitled to custody of his or her child.

The court also found Randy was thwarted by Tracey in his attempts to visit Cassandra and active concealment by Tracey could justifiably be inferred. The court additionally found Randy’s past problems with drugs and alcohol were somewhat stale and the evidence showed he had maturely addressed and hopefully cured those problems. The court found Randy sincerely wants custody of Cassandra, is employed, has accommodations for Cassandra, and will have help from his parents caring for her. A motion to reconsider was denied and the court ordered Cassandra remain in Randy’s custody pending appeal. Tracey appeals, alleging the circuit court erroneously modified custody in the absence of a finding of serious endangerment. Notably, Tracey has not alleged the circuit court erred in determining changed circumstances had been established or it was in Cassandra’s best interests to be placed with Randy.

The issue of whether there is an exception to the required showing of serious endangerment, due to a situation not contemplated by the legislature, involves a question of law. Thus, we review the circuit court’s ruling under a de novo standard of review. (See, e.g., Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 550, 370 N.E.2d 1198, 1202.) Tracey’s argument on appeal is essentially a “plain language” argument. Tracey argues because the plain language of the statute requires serious endangerment in order to modify custody orders within two years of their entry, the trial court erred in finding serious endangerment did not have to be established under the circumstances of this case. Randy argues the trial court correctly determined, under Oertel, Tracey’s violation of Illinois law requiring leave of court prior to the removal of a child from the State constituted a forfeiture of her right to custody. Randy additionally argues the legislature did not contemplate the situation of an incarcerated custodial parent when enacting the requirement of a showing of serious endangerment in order to modify custody within two years. Randy contends there should be an exception to requiring proof of serious endangerment under the circumstances of this case.

II. Timing Of Petition To Modify

Randy was adjudicated the father of Cassandra and ordered to financially support her on March 13, 1991. On May 15, 1991, the court entered an agreed order regarding visitation and ordered Randy could claim Cassandra as a deduction for Federal income tax purposes. These orders did not provide for the custody of Cassandra, nor has there ever been an explicit judicial declaration of the custody rights of the parents. However, under Illinois law, if a judgment of parentage contains no explicit award of custody, the establishment of support obligations or of visitation rights in one parent shall be considered a judgment granting custody to the other parent. (Ill. Rev. Stat. 1991, ch. 40, par. 2514(a)(2).) Since Randy’s petition was filed on February 13, 1992, less than two years after the entry of the orders requiring him to pay support and granting him visitation, it is as a petition filed within two years of a custody order.

III. Requirements For Modification Of Custody Within Two Years

The Illinois Parentage Act of 1984 provides modification of custody is governed by the Marriage Act. (Ill. Rev. Stat. 1991, ch. 40, par. 2516.) In the Marriage Act, the Illinois legislature has provided three requirements which must be met in a contested custody modification proceeding, before a custody order may be modified within two years of its entry. The petitioner must establish: (1) the child is seriously endangered in his or her present environment; (2) there have been changed circumstances warranting modification of the custody order; and (3) the proposed modification is in the best interests of the child. Ill. Rev. Stat. 1991, ch. 40, pars. 610(a), (b).

The limitation on custody modification within two years, absent serious endangerment, is a legislative attempt to provide stability and continuity in the child’s life by preventing the “ping-pong” litigation of custody disputes, yet provide a “safety valve” for the modification of custody in emergency situations. (Ill. Ann. Stat., ch. 40, par. 610(a), Historical and Practice Notes, at 94 (1980).) The effect of section 610(a) of the Marriage Act is that even if the noncustodial parent would, perhaps, be a better parent for the child, custody will not be modified within two years of the date of the custody order unless the child is seriously endangered. (In re Marriage of Clark (1986), 149 Ill. App. 3d 613, 616, 500 N.E.2d 1092, 1094.) The rationale for such a law is set forth in the comments to the Uniform Marriage and Divorce Act (Uniform Act) (9A U.L.A. §409, Comment, at 628-29 (1987)). Section 610 of the Marriage Act was modeled after the Uniform Act (see Ill. Ann. Stat., ch. 40, par. 610, Historical and Practice Notes, at 93 (1980)), and the comments to the Uniform Act have been cited with approval by Illinois courts. (See In re Custody of Harne (1979), 77 Ill. 2d 414, 420, 396 N.E.2d 499, 501-02; In re Marriage of Noble (1989), 192 Ill. App. 3d 501, 508-09, 548 N.E.2d 518, 522.) The comments state:

“Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree’s finality is more important than determining which parent should be the custodian. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L. Rev. 55 (1969). This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child’s interest. *** Any change in the child’s environment may have an adverse effect, even if the noncustodial parent would better serve the child’s interest.” (9A U.L.A. §409, Comment, at 628-29 (1987).)

Section 610(a) of the Marriage Act attempts to ensure continuity and stability for the child by providing, once the court has determined with which parent the child should be placed, the child’s living arrangements will not be disturbed — absent serious endangerment — for the following two years. Section 610 of the Marriage Act, in furtherance of the goal of maintaining continuity and stability in the life of the child, creates a presumption in favor of retaining the custodial parent, (In re Marriage of Gunter (1981), 93 Ill. App. 3d 1043, 1048, 418 N.E.2d 149, 153.) In order to overcome the presumption in favor of retaining the custodial parent, the noncustodial parent must establish the child is seriously endangered and circumstances have changed. After the presumption in favor of the custodial parent has been overcome, the petitioner must establish the proposed modification would be in the best interests of the child. In the present case, the trial court found the modification would be in the best interests of the child. Tracey has not appealed this determination. The issue on appeal is whether the presumption in favor of the custodial parent has been overcome because of Tracey’s incarceration.

While we agree when the custodial parent has been incarcerated, the noncustodial parent need not show serious endangerment to prevail on a motion for modification of custody, we reject Randy’s argument that a parent forfeits her right to custody by virtue of violating the custody decree or applicable statutes.

IV. Violation Of Custodial Decree Or Agreement Or Of Applicable Law As Forfeiture Of Right To Custody

Randy argues because Tracey removed Cassandra from the State without the court’s permission and did not inform him of her telephone number and address, she forfeited her right to custody of Cassandra. This argument is based on dicta in the second district’s Oertel decision.

The marriage of Bruce and Robyn Oertel was dissolved in 1989. (Oertel, 216 Ill. App. 3d at 807, 576 N.E.2d at 437.) Bruce and Robyn entered into a marital settlement agreement, which was incorporated into the judgment for dissolution. The agreement provided Bruce and Robyn would have joint custody of Jessica, their minor child; Bruce would have physical possession of Jessica during the academic year, and Robyn would have physical possession of Jessica during the summer months. The agreement expressly conditioned each party’s right to physical possession of Jessica upon the party’s residence with his or her parents. (Oertel, 216 Ill. App. 3d at 807, 576 N.E.2d at 437.) In 1990, Robyn filed a petition for modification of joint custody. One of the bases for modification of custody was that Bruce was no longer living with his parents. Bruce and Robyn presented an agreed order vacating the custody provision of the dissolution order which provided for joint custody. (Oertel, 216 Ill. App. 3d at 814, 576 N.E.2d at 442.) The order was entered by the circuit court, but the next day, under the erroneous belief it had no jurisdiction to enter such an order, the trial court vacated the order. Oertel, 216 Ill. App. 3d at 808, 576 N.E.2d at 438.

After a hearing on the merits of the petition, the court ruled Robyn had not shown Jessica was seriously endangered in her present environment. Robyn appealed, alleging the court should not have applied the serious endangerment test, but should instead have determined whether a change in custody was in Jessica’s best interests. (Oertel, 216 Ill. App. 3d at 812-13, 576 N.E.2d at 440-41.) The second district reversed the trial court, holding the agreed order vacating the custody provisions of the dissolution order was a stipulation within the meaning of section 610 of the Marriage Act. (Oertel, 216 Ill. App. 3d at 814, 576 N.E.2d at 442.) When the parties stipulate to a modification of the custody order, it is unnecessary to establish serious endangerment. (Oertel, 216 Ill. App. 3d at 815, 576 N.E.2d at 442.) Thus, the second district determined the trial court erred in holding a showing of serious endangerment was required, and the circuit court should have determined whether a change in custody was in Jessica’s best interests. Oertel, 216 Ill. App. 3d at 814, 576 N.E.2d at 442.

Although the second district determined the requirement of a showing of serious endangerment was obviated by the stipulation to modify custody, in dicta, the Oertel court noted since Bruce failed to comply with the express condition of his right to custody, the trial court would not have been modifying custody by changing custody from Bruce to Robyn. Specifically, the court stated:

“We further note that even if the parties had not agreed to vacate the terms of the prior judgment, Bruce’s violation of the provision requiring him to live with his parents would have justified terminating his custody rights. The trial judge stated that, even if Bruce did violate this provision, section 610(a) would only permit him to modify custody within two years if there was evidence of serious endangerment. This conclusion was completely erroneous. Section 610(a) only limits a trial court’s ability to modify a custody judgment. The custody judgment in this case expressly conditioned Bruce’s physical possession of Jessica on his continued residence with his parents. Thus, the trial judge would not have been modifying the custody judgment by terminating Bruce’s right to custody for violating the provision in question; he would have merely been enforcing the terms of that judgment.” (Emphasis in original.) Oertel, 216 Ill. App. 3d at 816, 576 N.E.2d at 443.

We do not believe the Oertel dicta may be read as broadly as Randy suggests. In Oertel, the court noted terminating the father’s right to custody based on his failure to comply with the express condition on his physical right to custody would not constitute modification, but merely enforcement of the custody judgment. As the right to physical custody was expressly conditioned upon Bruce’s residence with his parents, we agree terminating Bruce’s right to physical custody of the minor would not constitute a modification, but rather an enforcement, of the custody judgment. We would, however, reject the reasoning that by failing to comply with an express condition of the physical custody of the minor, the parent’s physical and legal custody could be terminated under the guise of enforcement, rather than modification, of the custody judgment.

To the extent the Oertel dicta is persuasive, it would be limited to cases in which there has been a violation of an express condition of the right to custody, whether physical, legal, or both. We do not believe the reasoning of the Oertel dicta may be expanded to encompass noncompliance with other provisions of the custody judgment or applicable statutes which do not operate as an express condition on the right to custody. Under Randy’s interpretation of the Oertel dicta, which was accepted by the trial court, any violation of the custody order or applicable statutes by the custodial parent would result in the custodial parent’s forfeiture of the right to custody and would permit the modification of custody in the absence of a showing of serious endangerment. This would undermine the serious endangerment and changed circumstances provisions of the Marriage Act, and jeopardize the stability and continuity the provisions were designed to enforce. Moreover, it invites the “ping-pong” litigation the legislature intended to prevent in enacting section 610(a) of the Marriage Act.

Randy’s interpretation of the Oertel dicta would jeopardize the stability and continuity of the child’s life by expanding custody modification beyond the circumstances authorized by section 610(a) of the Marriage Act. For example, Tracey removed Cassandra from the State without the permission of the court and neglected to furnish Randy with the address and telephone number of Cassandra’s out-of-State location, in violation of section 609 of the Marriage Act. (Ill. Rev. Stat. 1991, ch. 40, par. 609.) These transgressions, while not to be encouraged, are insufficient, standing alone, to constitute changed circumstances necessary to support a change of custody (see Gunter, 93 Ill. App. 3d at 1049, 418 N.E.2d at 154; In re Custody of Potts (1980), 83 Ill. App. 3d 518, 522, 404 N.E.2d 446, 449) though they would under Randy’s interpretation of the Oertel dicta.

Similarly, the requirement that serious endangerment be established is intended to prevent the “ping-pong litigation” of custody disputes. Specifically, the two-year waiting period is designed to discourage the noncustodial parent who tries to punish the custodial parent by means of frequent motions to modify. (Ill. Ann. Stat., ch. 40, par. 610(a), Historical and Practice Notes, at 94 (1980).) Randy’s interpretation of the Oertel dicta does not have the effect of discouraging litigation, but invites the noncustodial parent to file a petition to modify upon the incidence of every infraction of the custody order or custody provisions of the Marriage Act. We reject Randy’s argument and disapprove of the circuit court’s reliance on the Oertel dicta in this case.

V. Exception To The Requirement Of A Showing Of Serious Endangerment

The application of section 610 of the Marriage Act when a custodial parent is incarcerated presents a unique issue. The parties have provided us with two distinct methods of resolving custody issues under these circumstances. Tracey suggests the incarcerated custodial parent should remain the nominal custodian of the child, and should be able to designate a temporary custodian, even over the objection of the noncustodial parent. Under this scenario, the noncustodial parent would be prevented from petitioning for removal of the child from the home of the temporary caregiver to the home of the noncustodial parent absent a showing the child was seriously endangered in the temporary caregiver’s home. Conversely, Randy contends acceptance of Tracey’s position would permit a nonparent to have custody over the child in contravention of the parent’s superior right to custody. Randy asserts a better resolution of this issue is to find that when the stability and continuity in the child’s life have already been disrupted by the custodial parent’s incarceration, custody may be modified in the absence of the establishment of serious endangerment if it is in the best interests of the child. We find Randy’s argument persuasive.

A. Natural Parent’s Superior Right to Custody

Allowing Tracey to remain the nominal custodian and designate a temporary caregiver, over Randy’s objection, would contravene his superior right as a parent to the custody of Cassandra. There is an affirmative presumption the right of a natural parent to the custody of a child is superior to the claim of a third person. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, 491 N.E.2d 1150, 1151.) Neither parent’s right to the care, custody, and control of the child is superior to that of the other parent. (People ex rel. Irby v. Dubois (1976), 41 Ill. App. 3d 609, 612, 354 N.E.2d 562, 565.) However, we do not believe the equal right of one parent to the care, custody, and control of the child encompasses the right to shift custody of the child to a third party.

Upon her incarceration, Tracey became unable to fulfill her role as Cassandra’s physical custodian. No Illinois authority stating an incarcerated parent continues to hold custody of his or her child has been cited to us. On the contrary, the first district has held an incarcerated parent does not have physical custody of the child: “[physical custody” is defined in the Uniform Child Custody Jurisdiction Act as “actual possession and control of a child” (Ill. Rev. Stat. 1979, ch. 40, par. 2103.08). (Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 212, 416 N.E.2d 1140, 1145.) Such a holding is logical, because an incarcerated parent, much like a deceased parent, is no longer able to care for, supervise, provide a home, prepare food, obtain medical treatment, or be involved in the daily life of the child. In short, an incarcerated parent cannot fulfill the role of a physical custodian of the child. Although incarceration may not absolutely prevent a parent from fulfilling the role of the child’s legal custodian, it does impair this ability. The parent is not readily available to give advice or console the child, or to be an example. Further, the incarcerated parent is not readily available to consent to medical treatment and decide other issues generally reserved to legal custodians.

The emergency placement of a child in the care of a neighbor or relative is foreseeable and understandable in the case of a custodial parent being taken into custody. Regardless of whether the child’s parents are able to agree upon the child’s future custodial arrangements or whether a court determination of those arrangements will be necessary, the child’s needs cannot wait for an agreement, litigation, or for the noncustodial parent to travel to the child’s location. The child has needs which must be met immediately. The incarceration of a custodial parent presents an emergency situation, as the child immediately loses the provider of his or her food, shelter, and supervision. It would be natural under these circumstances for the custodial parent to request a relative or neighbor to provide food, shelter, and supervision for the child.

While the incarcerated parent has the right to make emergency arrangements for the child’s immediate care, the incarcerated parent cannot dictate that the third party continue to act as temporary custodian for the child for the duration of his or her incarceration, defeating the noncustodial parent’s right to custody. The supreme court’s decision in Harne indicates, albeit under different circumstances, that the court does not look favorably upon a custodial parent who is not in actual physical custody of the child attempting to direct the children be placed with a third party. (Contra Harne, 77 Ill. 2d at 416, 396 N.E.2d at 500 (parent with physical custody, not custodial parent, placed children with third party).) Gene and Nancy Harne were divorced in 1972. The decree awarded custody of their two minor children to Nancy. In 1975, Nancy found herself unable to provide adequate care for the children, and she placed them with their maternal grandparents. In 1976, Gene filed a petition for modification of custody. (Harne, 77 Ill. 2d at 416, 396 N.E.2d at 500.) Nancy testified she did not want actual physical custody of the children, but preferred they remain with the maternal grandparents. The grandparents were elderly and if anything happened to them she would take physical custody of the children. (Harne, 77 Ill. 2d at 417, 396 N.E.2d at 500.) The circuit court found Nancy did not “have the stability or ability that is necessary to maintain and care for the children, that they have been living with their grandparents rather than [Nancy], and that under these circumstances, their present environment could seriously affect their physical, mental, moral or emotional health.” (Harne, 77 Ill. 2d at 422, 396 N.E.2d at 502.) The circuit court therefore transferred legal custody of the children to their father. The appellate court majority reversed. (In re Custody of Harne (1978), 66 Ill. App. 3d 820, 823, 384 N.E.2d 460, 462-63.) The supreme court reversed the appellate court and affirmed. Harne, 77 Ill. 2d at 423, 396 N.E.2d at 503.

The circumstances resulting in Nancy’s relinquishment of her children to a relative are distinct from Tracey’s placement of Cassandra with Parker here. The Harne case also differs in that serious endangerment was found by the circuit court in Harne, while the circuit court here found it was unnecessary to establish serious endangerment. However, Harne is instructive on whether the custody rights of a custodial parent include the ability to designate that the children should be cared for by a nonparent over the objection of the noncustodial parent.

In the present case, upon her arrest, Tracey specified she wished Parker to have “temporary guardianship” of Cassandra from the time of her arrest until her sentencing. If incarcerated, Tracey wished temporary custody to be changed from Parker to Jean, Tracey’s mother, and Patton, another one of Tracey’s sisters. During her incarceration Tracey wished Jean and Patton to exercise “joint custody and guardianship.” The natural parent’s superior right to custody would likely prevent Parker, Jean or Patton from prevailing over Randy in a custody dispute involving Cassandra. To allow Tracey to remain Cassandra’s nominal custodian while delegating the fulfillment of custodial duties to a nonparent would permit Tracey and her relatives, acting in concert, to do indirectly that which could not be done directly.

The custodial parent’s attempt to make a binding designation of a “temporary custodian” contravenes the noncustodial parent’s superior right, as a parent, to the custody of the child over a third party. Moreover, in the case of an incarcerated parent who has placed the children with a relative or neighbor, to require the noncustodial parent to show the child is seriously endangered to wrest the child from that relative or neighbor is inconsistent with the noncustodial parent’s superior right to custody over that of the relative or neighbor.

B. Incarceration of the Custodial Parent is Analogous to Death of the Custodial Parent

Illinois courts have not previously explicitly recognized an exception to the statutory requirement that serious endangerment to the child be established for custody to be modified within two years of the original custody order. However, the courts have implicitly recognized an exception in one situation — where the custodial parent dies within two years of the custody order. In the present case, the circuit court analogized this case to one in which the custodial parent had died. Specifically, ruling on the motion to reconsider, the court stated:

“When you talk of serious endangerment I see one serious flaw with that argument under these circumstances and that would be a situation typical of this say perhaps the mother has custody. Judgment has just been entered. She finds out that she’s sick. She places the child with the grandmother. She goes into the hospital and dies on the operating table two months after getting custody. Now, according to what you say *** the only way the biological father could get that child is by saying that that child’s welfare was seriously endangered, and even in that scenario that I painted the grandmother is taking exceUent care of the child, nobody disputes that, and I can’t contemplate that’s what the legislature meant nor that the courts would rule that for the period of two years the father couldn’t file a petition to get his own child back.”

In order to determine whether it is appropriate to create an exception to the statutory requirement of establishing serious endangerment in the case of an incarcerated parent, we examine the rationale for such an exception in the case of the death of the custodial parent. Upon the death of the custodial parent, the legal custody of the child is in no one, and the court is empowered to make a determination regarding who is to be awarded custody of the child, based upon the best interests of the child. (Milenkovic, 93 Ill. App. 3d at 212, 416 N.E.2d at 1145-46.) Similarly, since a deceased person cannot be said to be in physical custody of a child, the custodial parent’s physical custody of the child also terminates upon the custodial parent’s death. (See Milenkovic, 93 Ill. App. 3d at 211-12, 416 N.E.2d at 1144-45.) Since the custodial parent’s legal and physical custody of the child has been terminated by the legal custodian’s death, the deceased former custodial parent cannot be retained as the custodial parent, and there is no presumption in favor of retaining a custodial parent to be overcome. There is no longer any reason to require a showing of serious endangerment. Serious endangerment is a threshold requirement which must be met to overcome the presumption, but in the absence of the presumption there is no need for the threshold requirement.

In Peterson, the supreme court ruled on issues involving a custody dispute between the biological father and the maternal grandparents. The marriage of James and Felicia Peterson was dissolved in February 1983. The court awarded custody of Lynette, their minor child, to Felicia. Felicia and Lynette lived with Felicia’s parents. In May 1984, Felicia died. After the funeral, James requested Felicia’s parents turn Lynette over to him. They refused and both parties filed petitions for modification of custody. (Peterson, 112 Ill. 2d at 51, 491 N.E.2d at 1151.) The circuit court found Felicia’s grandparents had no standing to bring a petition for the modification of custody, and ordered James be given custody of Lynette. The appellate court reversed. (Peterson, 112 Ill. 2d at 50, 491 N.E.2d at 1151.) The supreme court then reversed the appellate court and affirmed the circuit court. The only issue before the supreme court was whether the circuit court erred in dismissing the maternal grandparents’ petition for modification of custody, due to lack of standing. The supreme court found the maternal grandparents did not have standing. (Peterson, 112 Ill. 2d at 55, 491 N.E.2d at 1153.) Although the courts did not address whether James, the noncustodial parent, was required to establish serious endangerment to the child there, we conclude it is implicit in such circumstances that such a showing is not required.

We find the incarceration of the custodial parent analogous to the death of the custodial parent. In both instances the custodial parent is no longer able to care for the child or perform other custodial duties. Although death and incarceration differ in that death terminates both legal and physical custody of the children, while incarceration terminates physical but not necessarily legal custody of the child, we believe the termination of the physical custody of the child is sufficient to obviate the need for the showing of serious endangerment. In reaching this conclusion, we find the decision of one of our sister courts persuasive. The Ohio Appellate Court has determined the custodial parent’s inability to serve as the child’s physical custodian is sufficient, in itself, to obviate the necessity that serious endangerment be established in order to modify custody. Adkins v. Adkins (Feb. 13, 1985), Pike App. No. 370 (unreported, 1985 WL 6537).

The marriage of Virginia and Danny Adkins was dissolved in 1979, and custody of their minor children was awarded to Virginia. In February 1983, Virginia placed the children in the home of Buddy and Barbara Carnley, in Florida. At some time in 1983, Virginia was convicted of aggravated robbery and involuntary manslaughter and sentenced to the reformatory for a period of 7 to 25 years. On March 22, 1983, after Virginia’s arrest and confinement, Danny filed a motion to modify the previous custody order requesting custody of the children. On June 9, 1983, Virginia filed a motion to modify the original custody order by awarding custody to the Camleys. The Ohio statute regarding modification of custody read as follows:

“Except as provided in division (B)(2) of this section, the court shall not modify a prior custody decree unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, his custodian, or either joint custodian, and that the modification is necessary to serve the best interest [sic] of the child. In applying these standards, the court shall retain the custodian or both of the joint custodians designated by the prior decree, unless one of the following applies:
(a) The custodian or both joint custodians agree to a change in custody.
(b) The child, with the consent of the custodian or of both custodians, has been integrated into the family of the person seeking custody.
(c) The child’s present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.” (Ohio Rev. Code Ann. §3109.04(8)(1) (Anderson 1989).)

Virginia argued absent a finding that either factor (a), (b), or (c) existed, the court was without authority to modify its original custody order granting her custody. The trial court rejected this argument and found it would be in the best interests of the children to grant custody to Danny. Affirming the trial court, the court of appeals held under the facts of the case, the trial court could modify the original order of custody without a finding of the existence of one of the enumerated statutory factors. The court recognized the State legislature had intended to limit the court’s discretion in custody proceedings by authorizing the court to modify a prior custody order only if one of the enumerated criteria is established, otherwise the prior custodian must be retained. However, the court found where the custodial parent is incarcerated, there was no issue regarding the retention of the prior custodian, because the prior custodian was unable to perform any of the custodial functions by reason of her lengthy imprisonment, and a change of custody is concededly required. The court found the enumerated statutory factors were not required to be met in that case.

The factors enumerated in the Ohio statute are almost identical to an earlier Illinois statute regarding modification (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)) and similar to the current Illinois statute regarding modification. Moreover, both the Ohio and Illinois legislatures, in enacting the provisions regarding modification, intended to limit a court’s ability to modify custody orders. Compare Ohio Rev. Code Ann. §3109.04(8)(1) (Anderson 1989) with Ill. Ann. Stat., ch. 40, par. 610, Historical and Practice Notes, at 93-97 (1980).

We find the reasoning of the Ohio Appellate Court persuasive and, accordingly, hold an incarcerated custodial parent, by virtue of his or her incarceration, does not have physical custody of a child and there is no longer a presumption in favor of retaining him or her as the custodial parent. Since the purpose of establishing serious endangerment is to rebut a presumption in favor of retaining the custodial parent, it is therefore unnecessary to establish serious endangerment.

C. The Continuity and Stability in the Child’s Life Have Already Been Disrupted

Our holding is not inconsistent with the legislative intent of promoting continuity and stability of the child’s environment. The child’s environment has already been disrupted by the incarceration of her custodial parent and the shifting of physical possession of the child from the custodial parent to another person. Requiring the noncustodial parent to establish serious endangerment before custody may be modified would not preserve stability and continuity in the child’s life. Our holding is not inconsistent with the legislative goal of preventing the noncustodial parent from engaging in continued custody litigation in order to punish the custodial parent. The exception to the requirement of establishing serious endangerment is restricted to instances of a custodial parent’s incarceration resulting in the child being cared for by a third party.

D. The Legislature, in Enacting Section 610 of the Marriage Act, Did Not Contemplate the Situation in Which the Custodial Parent Becomes Incarcerated

Section 610(a) of the Marriage Act contemplates a situation in which both the custodial parent and the noncustodial parent are legally and physically available to act as the child’s legal and physical custodian, and the parents are litigating the removal of the child from the home of the custodial parent, and relocation of the child to the home of the noncustodial parent. In such a circumstance there is a presumption in favor of retaining the custodial parent which may be overcome only by establishing serious endangerment. However, in the case of the incarceration of the custodial parent, several factors weigh in favor of holding serious endangerment need not be established: (1) the custodial parent is no longer able to act as the child’s custodian; hence, there can be no presumption in favor of retaining the custodial parent; (2) the stability and continuity of the child’s life have already been disrupted by the custodial parent’s incarceration and the shift of the care of the child from the custodial parent to another; and (3) allowing the incarcerated parent to unilaterally designate a nonparent caretaker over the objection of the noncustodial parent contravenes the noncustodial parent’s superior right to the custody of the child over the rights of the nonparent.

When a parent to whom custody was originally awarded is incapable, due to his or her incarceration, of continuing physical custody of the child, and the child is being cared for by a third party, that is a significant change in circumstances and custody may be modified without establishing serious endangerment if such modification is in the best interests of the child. The trial court properly found Randy was not required to show serious endangerment in order to cause the child’s removal from the third party, and relocation to his custody. To require him to establish serious endangerment before Cassandra could be removed from the third party would contravene his superior right, over that of the third party, to the custody of his daughter and would not serve the legislative goals of providing stability and continuity and discouraging litigation.

VI. Best Interests Analysis

We note our holding does not mandate that in every case an incarcerated custodial parent will, upon the petition of the noncustodial parent, lose custody of the child. The proposed modification must still be in the best interests of the child. There may be situations in which the custodial parent has been incarcerated, but it still would not be in the best interests of the child to modify the custody award. For example, where the term of incarceration is minimal in duration, or the custodial parent has remarried and the custodial parent and his or her new spouse have made a good home for the child in which the child could appropriately live during the custodial parent’s incarceration, a trial court might conclude a modification was not in the child’s best interests.

Tracey has not appealed the circuit court’s determination that a modification of custody was in Cassandra’s best interests; however, we note this determination was not against the manifest weight of the evidence. There are several factors supporting the circuit court’s determination that a custody modification was in Cassandra’s best interests. Tracey thwarted Randy’s attempts to visit Cassandra, removed Cassandra from the State without the permission of the court, and concealed her whereabouts from Randy as well as Jean, Cassandra’s maternal grandmother. This was disruptive to Cassandra’s life and family relationships. Once in Georgia Tracey married a man whom she had known for one month and introduced this man into Cassandra’s life as a stepfather. Tracey was also to be imprisoned for a period of eight months to two years, and wanted Cassandra to be cared for by various relatives during this period. Randy, on the contrary, had offered to provide a stable life for Cassandra in proximity to her paternal and the majority of her maternal relatives, to facilitate visitation, and provide Cassandra with care by her paternal grandparents while he is at work. The court’s determination it was in Cassandra’s best interests to be placed in the stable home of her biological father, rather than in the home of her aunt in Georgia, or with other maternal relatives, was not against the manifest weight of the evidence.

VII. Conclusion

We disapprove of the trial court’s reliance on the Oertel dicta in this case, but we affirm the trial court’s determination that Randy was not required to establish serious endangerment prior to becoming entitled to a change of custody. Tracey, by virtue of her incarceration, was unable to exercise custody over Cassandra, and the modification of custody was in Cassandra’s best interest. We affirm the order of the circuit court of Logan County, ordering custody of Cassandra be modified in favor of Randy.

Affirmed.

McCULLOUGH and LUND, JJ., concur.