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                                                                            Date: 2018.01.22
                                  Appellate Court                           13:46:43 -06'00'




                      Young v. Herman, 2018 IL App (4th) 170001



Appellate Court       CRYSTAL YOUNG and MICHAEL YOUNG, Petitioners-
Caption               Appellees, v. KOURTNEY HERMAN and DAVID HERRON,
                      Respondents (Kourtney Herman, Respondent-Appellant).



District & No.        Fourth District
                      Docket No. 4-17-0001



Rule 23 order filed   November 6, 2017
Motion to publish
allowed               January 3, 2018
Opinion filed         January 3, 2018
Rehearing denied      January 5, 2018



Decision Under        Appeal from the Circuit Court of McLean County, No. 15-F-370; the
Review                Hon. William A. Yoder, Judge, presiding.



Judgment              Affirmed.


Counsel on            Dmitry N. Feofanov, of ChicagoLemonLaw.com, P.C., of Lyndon,
Appeal                and Jeffrey W. Lindsay, of Bloomington, for appellant.

                      Gina L. Wood, of Thomson & Weintraub LLC, of Bloomington, for
                      appellees.

                      Helen E. Ogar, of Ogar & Miller, of Bloomington, guardian ad litem.
     Panel                   JUSTICE STEIGMANN delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Harris and Justice DeArmond concurred in the
                             judgment and opinion.


                                              OPINION

¶1         In December 2015, petitioners, Crystal Young and her husband Michael Young, filed a
       “petition to establish custody” of Crystal’s granddaughter, J.H. (born November 20, 2006),
       pursuant to section 601 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution
       Act) (750 ILCS 5/601 (West 2014) (recodified as amended by Pub. Act 99-90 (eff. Jan. 1,
       2016) at 750 ILCS 5/601.2)). In their petition, the Youngs alleged that they had cared for and
       made decisions on behalf of J.H. since she was an infant, in cooperation with J.H.’s mother,
       respondent Kourtney Herman. Kourtney claimed that the Youngs lacked standing to bring
       their petition and that it was not in J.H.’s best interests for the Youngs to have custody.
¶2         Over a series of hearings in July, August, September, and October 2016, the trial court
       heard evidence. In October 2016, the court determined that the Youngs had standing and that
       it was in J.H.’s best interests to award the Youngs primary parental decision-making
       responsibility for J.H. This appeal followed.

¶3                                       I. BACKGROUND
¶4                           A. The Youngs’ Petition to Establish Custody
¶5          In December 2015, the Youngs filed a petition to establish custody of J.H. pursuant to
       section 601 of the Dissolution Act (750 ILCS 5/601 (West 2014)). The petition alleged that
       Crystal was J.H.’s paternal grandmother and that Michael was her husband. The Youngs
       claimed that J.H. had been in their “physical care, custody, and control” since she was two
       months old. The Youngs further claimed that J.H.’s mother, Kourtney, had recently removed
       J.H. from the Youngs’ care. The Youngs argued that it was in J.H.’s best interests that the
       trial court award them custody of J.H. The Youngs requested that the court (1) award the
       Youngs the “primary care, control and education of [J.H.]” and (2) adjudicate parenting time
       between the Youngs and Kourtney.
¶6          Two days later, the Youngs filed a petition for an emergency order of protection,
       requesting that J.H. be returned to their care. Shortly thereafter, the trial court entered an
       emergency order of protection, ordering Kourtney to return J.H. to the physical care of the
       Youngs. The court later modified the emergency order to allow Kourtney visitation time with
       J.H. twice a week. (The emergency order of protection was subsequently extended several
       times by the court.)

¶7                                B. Kourtney’s Motion to Dismiss
¶8         In June 2016, Kourtney filed a combined motion to dismiss the Youngs’ petition to
       establish custody under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
       5/2-619.1 (West 2016)).


                                                  -2-
¶9         Kourtney argued that the Youngs’ petition should be dismissed under section 2-615 of
       the Code (id. § 2-615) because the petition failed to state a cause of action upon which relief
       could be granted. Kourtney argued that a nonparent could file a petition for custody only if
       the child in question was not in the “physical custody” of either of the child’s parents. 750
       ILCS 5/601(b)(2) (West 2014). Kourtney reasoned that, when the Youngs filed their petition,
       J.H. was in Kourtney’s custody and, therefore, the Youngs’ petition failed to state a cause of
       action.
¶ 10       Kourtney argued further that the Youngs’ petition should be dismissed pursuant to
       section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)) because the claim was
       barred by other affirmative matter. Specifically, Kourtney argued that the Youngs lacked
       standing to bring their claim because J.H. was in the physical custody of Kourtney when the
       Youngs filed their petition.
¶ 11       The trial court declined to immediately rule on the motion to dismiss and, instead,
       scheduled a trial, after which the court would decide both the motion to dismiss and
       best-interests issues.

¶ 12                                C. The Guardian Ad Litem Report
¶ 13      In July 2016, the guardian ad litem, Helen Ogar, filed a report containing her
       observations and recommendations concerning J.H. Ogar observed J.H. in Kourtney’s home
       and in the Youngs’ home. Ogar stated that both homes showed J.H. a lot of love. When Ogar
       asked J.H. how much time she spent at each home, J.H. was unable to answer because she
       did not see a distinction between the two homes. J.H. considered her different family
       members “one big family.” Ogar could not determine whose custody J.H. had been in, as
       Ogar learned that J.H. spent considerable time with both parties.
¶ 14      Ogar recommended that both Kourtney and the Youngs be involved in J.H.’s life. The
       Youngs provided a “stability” that J.H. otherwise lacked. Ogar recommended that
       decision-making should be split evenly between Kourtney and the Youngs, who had been
       contributing to the decision-making.

¶ 15               D. Evidentiary Hearings in July, August, September, and October 2016
¶ 16       In July, August, September, and October 2016, the trial court conducted six evidentiary
       hearings to resolve Kourtney’s motion to dismiss and the Youngs’ petition to establish
       custody. The following pertinent evidence was presented at those hearings.
¶ 17       Autymne Huerta testified that she lived in the same apartment complex as Kourtney and
       J.H. from August 2011 through July 2015. During that time, Huerta saw Kourtney bring J.H.
       to the bus stop every morning. Every time Huerta saw Kourtney, J.H. was with her.
       However, Huerta also testified that she occasionally saw Crystal dropping off J.H. and
       picking her up from the school bus.
¶ 18       Derek Riebe testified that he was Kourtney’s next-door neighbor from 2010 to 2014.
       During that time he saw J.H. with Kourtney nearly every day. J.H. and Riebe’s daughter
       played together almost every day after school. Riebe saw Crystal picking J.H. up from school
       and dropping her off at the bus stop, which he believed she did every day. On most of the
       occasions when Riebe saw J.H., she was with Kourtney, but the Youngs “were very active
       grandparents.” Riebe believed that Kourtney’s mom and sister lived in the apartment with her

                                                  -3-
       and J.H. Riebe assumed he saw Crystal more than Kourtney because Crystal was J.H.’s ride
       to and from preschool.
¶ 19       Crystal testified that she lived with her husband, Michael, and her granddaughter, J.H.,
       who was the daughter of Crystal’s son, David Herron, who was no longer involved in the
       child’s life. In December 2006, David told Crystal that Kourtney had given birth to his child,
       J.H. That month, Crystal visited Kourtney’s home between three and six times. In January
       2007, Kourtney agreed to have parentage testing conducted, which showed that David was
       J.H.’s biological father.
¶ 20       Crystal testified further that beginning in February 2007, Kourtney allowed J.H. to spend
       the night at Crystal’s home anywhere from two to four times per week. Meanwhile, Crystal
       was supplying J.H. with necessities such as diapers, clothing, and milk. In March or April
       2007, after Kourtney had a disagreement with David, she told Crystal that she wanted
       nothing to do with David and asked Crystal to coparent J.H. with her. From that time until
       mid-2008, J.H. spent four nights a week at Crystal’s home and three nights at Kourtney’s.
       From mid-2008 through October 2015, J.H. spent five or six nights a week at Crystal’s home.
¶ 21       Crystal testified further that it was her idea for J.H. to attend preschool, starting when
       J.H. was 18 months old, which Crystal arranged and paid for. Kourtney accompanied Crystal
       to appointments with different learning centers during the selection process. Crystal arranged
       for J.H. to have her first immunizations so that she could start preschool. After preschool
       started, Crystal took J.H. to and from preschool and bought her supplies. In addition, Crystal
       located tutoring programs and extracurricular activities for J.H. Crystal scheduled almost all
       of J.H.’s medical appointments, which both Kourtney and Crystal attended. From 2007 to
       2015, Crystal provided Kourtney with transportation because Kourtney’s driver’s license was
       revoked, and Crystal also paid some of Kourtney’s bills. Crystal also took J.H. on several
       trips and regularly took her to church. Crystal was concerned because Kourtney smoked
       cigarettes in her home and sometimes drank alcohol in excess.
¶ 22       Crystal also testified that one afternoon in October 2015, she and Kourtney had a
       confrontation while waiting for J.H. at the bus stop. Kourtney approached Crystal’s car and
       threatened to physically hurt Crystal because she was “so messy.” When the bus dropped off
       J.H., Kourtney told Crystal that she would never see J.H. again. Kourtney stood nose-to-nose
       with Crystal and called her profane names. Crystal responded by using a profane insult
       toward Kourtney. Kourtney took J.H. to Kourtney’s home and allowed Crystal only minimal
       contact with her since.
¶ 23       Henry Guenther testified that he had been the Youngs’ next-door neighbor since 2010.
       Guenther frequently saw J.H. at the Youngs’ home. He could see the Youngs’ television
       playing cartoons almost every weekend. In addition, Guenther worked in his yard between
       three and five times a week and would notice J.H. playing outside.
¶ 24       Michael Young testified that from the time J.H. was a baby, she spent four to five nights
       per week with the Youngs. Michael was a physician and helped arrange J.H.’s medical care.
       He and Crystal arranged and paid for J.H.’s day care, preschool, extracurricular activities,
       and tutoring. Every time Michael visited Kourtney’s home, the windows were shut, and the
       home “reeked” of cigarette smoke. Once in 2011 and once in 2012, Michael received a call
       from J.H. stating that Kourtney was asleep and would not wake up. When Michael went to
       Kourtney’s home to investigate, he discovered that Kourtney was intoxicated.


                                                  -4-
¶ 25        Kourtney testified that her driver’s license was suspended after a January 2006 conviction
       for driving under the influence of alcohol. Kourtney testified that at the time of her
       testimony, her license remained suspended. Kourtney did not work from 2006 through 2013.
       Since 2013 she has worked as a certified nursing assistant for Aperion Care. Kourtney stated
       that she planned to move to Florida but that nothing was “set in stone” and she needed to get
       her driving privileges back and make arrangements in Florida before any move could happen.
¶ 26        Shannon Baxter testified that she was the mother of two of Crystal’s other grandchildren.
       Crystal, Shannon, J.H., and Shannon’s son, T.B., once took a trip to Chicago to see a concert.
       Crystal drove. When Crystal got lost in Chicago, she considered returning to Bloomington
       and missing the concert. Shannon suggested that T.B. should decide. Crystal responded, “I
       don’t give a fuck about [T.B.] or his birthday.” T.B. was “crushed” and began to cry. Crystal
       then made Shannon and T.B. get out of the car.
¶ 27        In October 2016, after the final evidentiary hearing, the trial court heard arguments from
       the parties. The Youngs argued that Kourtney had forfeited her standing argument by failing
       to timely plead it. Alternatively, the Youngs argued that, even if Kourtney properly pled lack
       of standing, the Youngs had standing to bring their claim because J.H. was not in the
       “physical custody” of Kourtney or David when the Youngs filed their petition.
¶ 28        The trial court determined that “there was no challenge to standing filed during the time
       of pleadings.” As a result, the court concluded “that issue would be waived.” Nonetheless,
       the court went on to address the merits of the standing issue. The court stated the following
       about standing:
                    “As it relates to the issue of standing as whether or not a parent had, had custody
                of this child at the time of the pleadings, at the time of the initiation of this
                proceeding, the, the evidence in this case I think is, is extensive. And the evidence in
                this case, I believe, demonstrates that [J.H.] was removed from the Youngs’ ‘custody’
                a short time prior to the filing of these proceedings. And that I don’t believe because
                [J.H.] was in the physical custody of her biological mother, [Kourtney], at the time of
                the filling of the proceedings would prohibit the [Youngs] to file this petition, because
                she was, in essence, yanked from their custody which caused them to initiate these
                proceedings to seek her return.”
       The trial court found the testimony of the Youngs, Guenther, and Riebe to be credible.
¶ 29        The trial court also found that Crystal “became the primary caregiver for [J.H.] and that
       *** Kourtney surrendered that *** duty to Crystal. And that that surrender was an indefinite
       surrender.” The trial court found further that the Youngs provided J.H.’s medical care,
       oversaw her education, provided for her extracurricular activities, and fostered her spiritual
       life. In addition, the Youngs provided J.H.’s day-to-day care. The court was not persuaded
       that Kourtney had “physical custody” of J.H. when the petition for custody was filed.
¶ 30        The trial court concluded that it was in J.H.’s best interests for parental responsibilities to
       return to the status quo prior to Kourtney’s removing J.H. from the Youngs’ care. That is,
       that the Youngs should have primary decision-making responsibility, with parenting time
       awarded to Kourtney in the amount of every other weekend and one weeknight per week.
¶ 31        In November 2016, Kourtney filed an application for leave to defend as an indigent
       person and, in December 2016, a petition for attorney fees. At a December 2016 hearing, the
       trial court denied both of those motions.


                                                    -5-
¶ 32       Later that month, the trial court entered a written order incorporating its oral rulings from
       the October 2016 hearing. Specifically, the court determined that it was in J.H.’s best
       interests to award the Youngs custody of J.H. and to award Kourtney parenting time on
       Wednesday evenings and every other weekend.
¶ 33       In January 2017, Kourtney filed a notice of appeal.

¶ 34                                        II. ANALYSIS
¶ 35      Kourtney argues that the trial court erred by (1) denying her motion to dismiss the
       Youngs’ petition to establish custody and (2) concluding that it was in J.H.’s best interests to
       award the Youngs primary parenting responsibility. For the following reasons, we disagree
       with both of Kourtney’s arguments and, therefore, affirm the trial court’s judgment.

¶ 36                                    A. Motion to Dismiss
¶ 37       Kourtney argues the trial court erred by denying her motion to dismiss the Youngs’
       petition to establish custody. Kourtney makes the following assertions to support that
       argument: (1) the Youngs lacked standing to file their petition because Kourtney had
       physical custody of J.H. when the Youngs filed their petition, and (2) the court addressed the
       issues of standing and best interests in the same hearing, which confused the issues and
       prejudiced Kourtney.

¶ 38                              1. Section 601.2 of the Dissolution Act
¶ 39       On appeal, both parties cite the version of the Dissolution Act that became effective on
       January 1, 2016. 750 ILCS 5/601.2(b)(3) (West 2016). Although the Youngs filed their
       petition in December 2015, neither party contends that the prior version of the Dissolution
       Act should apply, which would be section 601 of the Dissolution Act (750 ILCS 5/601(b)(2)
       (West 2014)). Because the portions of the Dissolution Act relevant to this appeal are
       essentially unchanged by the January 1, 2016, amendments, we apply the 2016 version
       (which is section 601.2 of the Dissolution Act) throughout our discussion, as do the parties in
       their briefs.
¶ 40       Section 601.2(b)(3) of the Dissolution Act provides that a proceeding for allocation of
       decision-making responsibilities (formerly known as “custody”) of a child may be
       commenced in the following manner by a person who is not the child’s parent:
               “by a person other than a parent, by filing a petition for allocation of parental
               responsibilities in the county in which the child is permanently resident or found, but
               only if he or she is not in the physical custody of one of his or her parents.” 750 ILCS
               5/601.2(b)(3) (West 2016).
       Thus, the appropriateness of the Youngs’ petition for custody turns on whether J.H. was in
       the “physical custody” of Kourtney when the present action was commenced. See In re
       R.L.S., 218 Ill. 2d 428, 436, 844 N.E.2d 22, 28 (2006) (interpreting section 601(b)(2) of the
       Dissolution Act as having the following requirement: “to have standing to proceed on a
       petition for custody under the [Dissolution] Act, a petitioner must show that the child is not
       in the physical custody of one of his or her parents”).



                                                   -6-
¶ 41                                      2. “Standing” in This Case
¶ 42        Kourtney argues that the trial court erred by denying her motion to dismiss the Youngs’
       petition under section 2-619(a)(9) of the Code for lack of standing. Kourtney claims that J.H.
       was “in the physical custody of one of his or her parents” at the time the Youngs filed their
       petition. We disagree that section 601.2 of the Dissolution Act, which allows for a nonparent
       to file a petition for allocation of parental responsibilities (formerly known as a petition for
       custody) only if the child “is not in the physical custody of one of his or her parents,”
       addresses the standing of the petitioner. See 750 ILCS 5/601.2(b)(3) (West 2016). Instead,
       we view that requirement as an element of the cause of action that must be pleaded by the
       petitioner.
¶ 43        Section 601.2 of the Dissolution Act provides that a person who is not a parent or
       stepparent of a child may commence a proceeding for allocation of parental responsibilities
       for that child by filing a petition, but only if the child “is not in the physical custody of one of
       his or her parents.” Id. That same limitation appeared in the precursor to section
       601.2—section 601—which similarly provided that a “child custody proceeding” could be
       commenced by a nonparent only if the child was not in the physical custody of one of his or
       her parents. 750 ILCS 5/601(b)(2) (West 2014).
¶ 44        Several Illinois cases have referred to the above-described limitation as an issue of
       “standing.” See, e.g., In re Petition of Kirchner, 164 Ill. 2d 468, 491, 649 N.E.2d 324, 334
       (1995) (abrogated on other grounds by R.L.S., 218 Ill. 2d 428); In re Custody of Peterson, 112
       Ill. 2d 48, 53, 491 N.E.2d 1150, 1152 (1986); In re Parentage of Scarlett Z.-D., 2014 IL App
       (2d) 120266-B, ¶ 19, 11 N.E.3d 360; In re Custody of Groff, 332 Ill. App. 3d 1108, 1112, 774
       N.E.2d 826, 830 (2002); In re Custody of K.P.L., 304 Ill. App. 3d 481, 486-87, 710 N.E.2d
       875, 878-79 (1999); In re Marriage of Feig, 296 Ill. App. 3d 405, 408, 694 N.E.2d 654, 656
       (1998). However, traditional notions of “standing” do not apply to proceedings under section
       601.2 of the Dissolution Act.
¶ 45        In Illinois, the doctrine of standing “assures that issues are raised only by those parties
       with a real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d
       211, 221, 720 N.E.2d 1034, 1039 (1999). To have standing, a party must have “some injury
       in fact to a legally cognizable interest.” Id. “Lack of standing is an affirmative defense, which
       the defendant bears the burden to plead and prove.” Id. at 224. As such, lack of standing is as
       an affirmative matter properly raised in a section 2-619(a)(9) motion to dismiss. Id. at 220.
¶ 46        The language contained in section 601.2(b)(3) of the Dissolution Act, limiting a
       nonparent’s authority to file a petition to allocate parental responsibilities, does not raise
       traditional notions of standing. Instead, the limitation is a statutory threshold restricting a trial
       court’s authority to address a petition for allocation of parental responsibilities. A petitioner
       under section 601.2(b)(3) must plead as an element of a petition for allocation of parental
       responsibilities that this threshold has been crossed, and then the petitioner must prove it at
       trial.
¶ 47        In support of this conclusion, we note the supreme court’s statement in In re A.W.J., 197
       Ill. 2d 492, 496, 758 N.E.2d 800, 803 (2001), that “a nonparent’s ‘standing’ under section
       601(b)(2) does not refer to whether a litigant has a justiciable interest in a controversy.”
       Instead, “[i]t is merely a threshold issue.” Id. at 496-97; see also R.L.S., 218 Ill. 2d at 436
       (“[W]hen used in this sense, ‘standing’ simply referred to a threshold statutory requirement
       that had to be met before the court could proceed to a decision on the merits [citation].”).

                                                     -7-
¶ 48       The same considerations were noted in In re Custody of McCuan, 176 Ill. App. 3d 421,
       425, 531 N.E.2d 102, 105 (1988). The McCuan court noted that the “standing” requirement
       of section 601(b)(2) of the Dissolution Act “is distinct from the definition [of standing]
       familiar to most students of the law.” Id. The court explained that, although this requirement
       was referred to as one of “standing,” the burden to prove it lay with the petitioner: “the
       nonparent must show that the child is ‘not in the physical custody of one of his parents.’ ”
       Id.; see also Peterson, 112 Ill. 2d at 53 (“nonparents must first show that the child is ‘not in
       the physical custody of one of his parents’ ”); Groff, 332 Ill. App. 3d at 1112 (“The
       nonparent bears the burden of proving that he or she has standing.”).
¶ 49       Given that the requirement contained in section 601.2(b)(3) has frequently been
       mischaracterized as an issue of standing, we understand why the parties and the trial court in
       this case did the same. However, the limitation contained in section 601.2(b)(3) does not
       relate to whether the petitioner has an interest in the outcome of the controversy or whether
       the petitioner has an injury that can be remedied by the court. The limitation is properly
       understood as an element that must be pleaded and proved by a nonparent petitioner seeking
       an allocation of parental responsibilities.
¶ 50       Because we conclude that lack of physical custody by the parents is not an issue of
       standing, we need not address the Youngs’ argument that Kourtney failed to timely plead the
       issue as one of standing under section 2-619(a)(9) of the Code.

¶ 51                             3. What Does “Physical Custody” Mean?
¶ 52        Section 601.2 of the Dissolution Act does not define “physical custody.” However,
       extensive case law exists interpreting “physical custody” in the context of section 601 of the
       Dissolution Act—the precursor to section 601.2 of the Dissolution Act.
¶ 53        Whether a child is in the physical custody of a parent “is not subject to a clear test.” In re
       Custody of M.C.C., 383 Ill. App. 3d 913, 917, 892 N.E.2d 1092, 1096 (2008). Resolving the
       issue of physical custody “should not turn on who is in physical possession, so to speak, of
       the child at the moment of filing the petition for custody.” Peterson, 112 Ill. 2d at 53-54.
       “Physical possession of a child does not necessarily translate into physical custody ***.”
       M.C.C., 383 Ill. App. 3d at 917. For example, “[n]o one could legitimately suggest that the
       headmaster of a boarding school or the director of a children’s summer camp would have
       ‘custody’ under the [Dissolution Act].” Kirchner, 164 Ill. 2d at 492 (abrogated on other
       grounds by R.L.S., 218 Ill. 2d 428).
¶ 54        Some cases have held that to establish physical custody the nonparent must show that the
       biological parents “ ‘voluntarily and indefinitely relinquished custody of the child.’ ” See,
       e.g., M.C.C., 383 Ill. App. 3d at 917 (quoting In re Custody of Ayala, 344 Ill. App. 3d 574,
       588, 800 N.E.2d 524, 538 (2003)); Feig, 296 Ill. App. 3d at 408; In re Marriage of Rudsell,
       291 Ill. App. 3d 626, 632, 684 N.E.2d 421, 425 (1997). In addition, when determining
       whether a parent had physical custody, a court should consider factors including the
       following: “(1) who was responsible for the care and welfare of the child prior to the
       initiation of custody proceedings; (2) the manner in which physical possession of a child was
       acquired; and (3) the nature and duration of the possession.” In re A.W.J., 316 Ill. App. 3d 91,
       96, 736 N.E.2d 716, 721 (2000).



                                                    -8-
¶ 55                         4. Did “Physical Custody” Exist in This Case?
¶ 56       Kourtney argues that the Youngs’ petition for allocation of parental responsibilities
       should have been denied because J.H. was in Kourtney’s physical custody when the petition
       was filed. A trial court’s finding of physical custody will be affirmed on appeal unless the
       finding was against the manifest weight of the evidence. In re Marriage of Ricketts, 329 Ill.
       App. 3d 173, 177, 768 N.E.2d 834, 837 (2002). A finding is against the manifest weight of
       the evidence when the opposite conclusion is apparent or when the findings appear to be
       unreasonable, arbitrary, or not based on the evidence. Id. at 181-82. For the following
       reasons, we conclude that the trial court’s finding that J.H. was not in Kourtney’s physical
       custody was not against the manifest weight of the evidence.
¶ 57       Kourtney voluntarily relinquished her parenting responsibilities. Crystal testified that in
       March or April 2007, Kourtney asked Crystal to coparent J.H. Since that time, the Youngs
       have steadily taken on additional parenting responsibilities while J.H. has spent more time in
       their care. Kourtney’s allowing the Youngs to “coparent” J.H. constituted a voluntary
       relinquishment of her parental responsibilities that continued for several years.
¶ 58       Under the three-factor test provided by A.W.J., the trial court’s determination that J.H.
       was not in Kourtney’s physical custody was not against the manifest weight of the evidence.
       The trial court found that the Youngs were responsible for J.H.’s day-to-day care, medical
       care, education, extracurricular activities, and social life. That factor works in favor of the
       Youngs’ physical custody. As to the second factor—the manner in which physical possession
       of the child was acquired—Kourtney voluntarily requested that the Youngs help parent J.H.
       As to the third factor—nature and duration of the possession—the Youngs helped parent J.H.
       for approximately eight years, a significant period of time.
¶ 59       Kourtney’s physical possession of J.H. at the time the Youngs petitioned for custody did
       not establish that Kourtney had physical custody of J.H. As noted above, mere physical
       possession of a child at the time a petition is filed is insufficient to establish physical custody.
       See, e.g., M.C.C., 383 Ill. App. 3d at 917. The approximately two months of nearly exclusive
       care of J.H. was not enough to overcome the previous eight years during which Kourtney
       voluntarily relinquished many of her parenting responsibilities to the Youngs.

¶ 60                                    B. Best Interests of J.H.
¶ 61       Kourtney argues that the trial court’s allocating primary decision-making responsibilities
       to the Youngs was not in J.H.’s best interests. We disagree.

¶ 62                       1. Statutory Language and the Standard of Review
¶ 63       The Dissolution Act provides that “[t]he court shall allocate decision-making
       responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a) (West 2016).
       When determining the child’s best interests, the court shall consider all relevant factors,
       including the following:
                  “(1) the wishes of the child ***;
                  (2) the child’s adjustment to his or her home, school, and community;
                  (3) the mental and physical health of all individuals involved;
                  (4) the ability of the parents to cooperate to make decisions, or the level of
              conflict between the parties that may affect their ability to share decision-making;

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                   (5) the level of each parent’s participation in past significant decision-making
               with respect to the child;
                   (6) any prior agreement or course of conduct between the parents relating to
               decision-making with respect to the child;
                   (7) the wishes of the parents;
                   (8) the child’s needs;
                   (9) the distance between the parents’ residences, the cost and difficulty of
               transporting the child, each parent’s and the child’s daily schedules, and the ability of
               the parents to cooperate in the arrangement;
                   (10) whether a restriction on decision-making is appropriate under Section
               603.10;
                   (11) the willingness and ability of each parent to facilitate and encourage a close
               and continuing relationship between the other parent and the child;
                   (12) the physical violence or threat of physical violence by the child’s parent
               directed against the child;
                   (13) the occurrence of abuse against the child or other member of the child’s
               household;
                   (14) whether one of the parents is a sex offender, and if so, the exact nature of the
               offense and what, if any, treatment in which the parent has successfully participated;
               and
                   (15) any other factor that the court expressly finds to be relevant.” Id. § 602.5(c).
¶ 64       “The trial court is in the best position to judge witness credibility and determine the
       child’s best interests.” In re Marriage of Young, 2015 IL App (3d) 150553, ¶ 12, 47 N.E.3d
       1111. “In child custody cases, there is a strong and compelling presumption in favor of the
       result reached by the trial court because it is in a superior position to evaluate the evidence
       and determine the best interests of the child.” In re Marriage of Agers, 2013 IL App (5th)
       120375, ¶ 25, 991 N.E.2d 944. “We will not disturb a trial court’s custody determination
       unless it is against the manifest weight of the evidence.” Young, 2015 IL App (3d) 150553,
       ¶ 12. Although the Dissolution Act now refers to “decision-making responsibilities” instead
       of “custody” (750 ILCS 5/602.5 (West 2016)), we continue to apply the same standard of
       review, which is the manifest weight of the evidence.

¶ 65                                            2. This Case
¶ 66       Kourtney raises multiple arguments in support of her contention that the trial court’s
       allocation of decision-making responsibilities was against the manifest weight of the
       evidence.
¶ 67       First, Kourtney argues that the trial court considered evidence prohibited by section
       602.5(e) of the Dissolution Act, which provides that “[i]n allocating significant
       decision-making responsibilities, the court shall not consider conduct of a parent that does
       not affect that parent’s relationship to the child.” Id. § 602.5(e). Kourtney cites a long list of
       evidence that she claims was barred by section 602.5(e) and was prejudicial. But Kourtney
       provides no analysis as to why the evidence she cites should have been barred by section
       602.5(e).


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¶ 68       Next, Kourtney argues that the trial court failed to consider relevant evidence. Kourtney
       explains that the court “did not reference certain evidence and therefore seemingly did not
       consider such evidence in its ruling.” In particular, Kourtney argues that the trial court failed
       to consider Crystal’s use of profanity toward Kourtney and the violent criminal history of
       Crystal’s sons. Kourtney does not explain how that evidence was relevant to the
       best-interests analysis. Nor does she point to anything in the record to affirmatively establish
       that the court failed to consider the evidence in question. A court need not explicitly mention
       every piece of evidence that it considers in reaching its decision.
¶ 69       Kourtney next contends that the trial court failed to properly weigh the various
       best-interests factors. We disagree. The court addressed each of the statutory best-interests
       factors on the record. The court found that J.H. wished for her situation to return to how it
       had been prior to October 2015. Under that former arrangement, J.H. had adjusted well to
       home and school life. The court was concerned about Kourtney’s health as it related to her
       consumption of alcohol. The court determined that the Youngs and Kourtney would struggle
       to return to a cooperative relationship, which supported the court’s decision to award the
       Youngs primary decision-making responsibility instead of an even split of decision-making
       duties. The court found further that moving to Florida would not be in J.H.’s best interests. In
       addition, the court found that the Youngs provided J.H. a level of stability that (1) she needed
       and (2) Kourtney had not provided. Based on the aforementioned evidence, we conclude that
       the court’s decision to award the Youngs primary decision-making responsibility was not
       against the manifest weight of the evidence.
¶ 70       Finally, Kourtney argues that the trial court evaluation of the witnesses’ credibility was
       flawed. We reject that contention. “We give great deference to the trial court’s credibility
       determinations, and we will not substitute our judgment for that of the trial court.” Vician v.
       Vician, 2016 IL App (2d) 160022, ¶ 29, 64 N.E.3d 159.
¶ 71       In sum, the trial court’s best-interests determination was not against the manifest weight
       of the evidence.

¶ 72                                      III. CONCLUSION
¶ 73      We thank the trial court for its careful, extensive evaluation of the evidence in this case,
       which we found very helpful.
¶ 74      For the reasons stated, we affirm the trial court’s judgment.

¶ 75      Affirmed.




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