                                  Illinois Official Reports

                                         Appellate Court



                              Lee v. Fosdick, 2014 IL App (4th) 130939



Appellate Court              JUNE A. LEE, Petitioner-Appellant, v. URIAH N. FOSDICK,
Caption                      Respondent-Appellee.


District & No.               Fourth District
                             Docket No. 4-13-0939



Filed                        March 20, 2014



Held                         In a custody dispute between a young girl’s father and her maternal
(Note: This syllabus         grandmother after the girl’s mother died and both the father and
constitutes no part of the   grandmother sought custody, and then the trial court, after awarding
opinion of the court but     custody to the father and ultimately dismissing the count of the
has been prepared by the     grandmother’s amended pleading seeking custody, made a finding
Reporter of Decisions        under Supreme Court Rule 304(a) allowing an immediate appeal and
for the convenience of       certified a question under Rule 308(a) as to whether the grandmother
the reader.)                 had to reestablish her standing in order to modify the trial court’s
                             custody order where the trial court had previously found she had
                             standing when it granted her temporary custody following the
                             mother’s death and then granted her substantial visitation when it
                             awarded the father permanent custody, the appellate court answered
                             the certified question in the negative and the cause was remanded for
                             further proceedings.



Decision Under               Appeal from the Circuit Court of Vermilion County, No. 07-F-112;
Review                       the Hon. Michael D. Clary, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               Kristen H. Fischer and Emelia J. Hanson, both of Fischer & Wozniak,
     Appeal                   P.C., of Urbana, for appellant.

                              No brief filed for appellee.



     Panel                    PRESIDING JUSTICE APPLETON delivered the judgment of the
                              court, with opinion.
                              Justices Knecht and Harris concurred in the judgment and opinion.




                                                OPINION

¶1          Petitioner, June Lee, is the maternal grandmother of S.L., born on October 27, 2004.
       Respondent, Uriah N. Fosdick, is S.L.’s father. S.L.’s mother, Miranda Richards, is deceased.
¶2          After Richards died, Lee filed a petition seeking custody and guardianship of S.L. She
       thereafter amended her petition. We construe her amended petition as a motion for
       modification of custody, since, between the time she filed her original petition and the time she
       filed her amended petition, the trial court awarded custody to Fosdick. See 750 ILCS 5/610
       (West 2012).
¶3          Fosdick moved to dismiss the amended petition on the ground that Lee lacked standing. It
       is unclear whether his motion was pursuant to section 2-615 of the Code of Civil Procedure
       (735 ILCS 5/2-615 (West 2012)) or section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West
       2012)), but in any event our standard of review is de novo (Water Tower Realty Co. v.
       Fordham 25 E. Superior, L.L.C., 404 Ill. App. 3d 658, 662 (2010); In re Custody of M.C.C.,
       383 Ill. App. 3d 913, 918 (2008)).
¶4          The trial court granted Fosdick’s motion for dismissal as to count I of Lee’s amended
       petition, the count in which she sought custody of S.L. (in the other count, she sought
       guardianship). While dismissing count I, the court did two additional things. First, the court
       made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Second,
       the court certified the following question for interlocutory review pursuant to Illinois Supreme
       Court Rule 308(a) (eff. Feb. 26, 2010): “As a matter of law, is the Petitioner [(Lee)] required to
       re-establish standing in order to modify a custody order where the Court previously found she
       had standing, ordered temporary custody to her, and granted substantial visitation when
       permanent custody was awarded to the child’s father?”
¶5          Lee appeals under Rule 304(a). Also, we granted her leave to appeal under Rule 308(a). As
       we will explain, the correct answer to the certified question is no. Therefore, we reverse the
       trial court’s judgment, and we remand this case for further proceedings.

¶6                                        I. BACKGROUND
¶7        Originally, Richards had custody of S.L., but Richards died on August 2, 2008, whereupon
       Fosdick and Lee cross-petitioned for custody. In her petition, Lee alleged that S.L. had been in
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       Richards’s sole custody since S.L. was born and that, during the four years since her birth, S.L.
       “had no known contact with [Fosdick].”
¶8         On May 3, 2010, the trial court awarded Lee temporary custody of S.L. Later, however, on
       October 26, 2010, the court awarded permanent custody to Fosdick and visitation rights to Lee.
¶9         On April 24, 2013, Lee filed an amended petition for custody and guardianship. In her
       amended petition, she alleged that, as of the date of filing, Fosdick was in jail, awaiting
       resolution of various criminal charges against him.
¶ 10       On May 9, 2013, Lee filed a petition for injunctive relief. She alleged therein that Fosdick
       had been released on probation and that the probation order gave court services the discretion
       to transfer his probation to Indiana. Lee further alleged that S.L. had told her that Fosdick
       intended to move. Lee sought an injunction forbidding Fosdick to remove S.L. from Illinois,
       considering that the trial court had granted extensive visitation rights to Lee.
¶ 11       Fosdick filed a motion to dismiss Lee’s amended petition for custody and guardianship as
       well as a motion to dismiss her petition for injunctive relief. His argument in both motions was
       that she lacked standing.
¶ 12       On October 9, 2013, the trial court dismissed count I of the amended petition for custody,
       holding that Lee lacked standing, as Fosdick had argued. The court also made a finding
       pursuant to Rule 304(a).
¶ 13       At the same time, pursuant to Rule 308(a), the trial court certified a question for
       interlocutory review. Again, that question is as follows: “As a matter of law, is the Petitioner
       [(Lee)] required to re-establish standing in order to modify a custody order where the Court
       previously found she had standing, ordered temporary custody to her, and granted substantial
       visitation when permanent custody was awarded to the child’s father?”

¶ 14                                          II. ANALYSIS
¶ 15       The answer to the certified question is no.
¶ 16       Standing is determined from the allegations of the complaint (Illinois Ass’n of Realtors v.
       Stermer, 2014 IL App (4th) 130079, ¶ 26; Barber v. City of Springfield, 406 Ill. App. 3d 1099,
       1101 (2011); Martini v. Netsch, 272 Ill. App. 3d 693, 695 (1995)), at the beginning of the
       lawsuit (23-25 Building Partnership v. Testa Produce, Inc., 381 Ill. App. 3d 751, 755 (2008);
       CSM Insurance Building, Ltd. v. Ansvar America Insurance Co., 272 Ill. App. 3d 319, 323
       (1995); People ex rel. Lee v. Kenroy, Inc., 54 Ill. App. 3d 688, 692 (1977)). A “petition” is
       equivalent to a complaint. Black’s Law Dictionary 1182 (8th ed. 2004). Lee began her action
       for custody on August 18, 2008, when she filed her original petition for custody. (Because the
       modification of a custody order is sought in a “motion,” a modification proceeding is a
       continuation of a lawsuit rather than the initiation of a new lawsuit. 750 ILCS 5/610(a), (a-5)
       (West 2012).) In her petition, Lee alleged that S.L. had been in Richards’s sole custody since
       the date of S.L.’s birth, October 27, 2004; that Richards died on August 2, 2008; and that from
       the time S.L. was born to the time of Richards’s death, S.L. “had no known contact with
       [Fosdick].” Lee, a nonparent, had standing to seek custody of S.L. if S.L. “[was] not in the
       physical custody of one of [her] parents.” 750 ILCS 5/601(b)(2) (West 2012). According to the
       allegations in Lee’s petition of August 18, 2008, S.L. was not in the custody of either of her
       parents because one parent was dead and the other parent was uninvolved. A noncustodial
       parent is not automatically vested with custody upon the death of the custodial parent (In re
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       Marriage of Brownfield, 283 Ill. App. 3d 728, 733 (1996)), especially if the noncustodial
       parent has failed to maintain active and ongoing contact with the child (id. at 735).
¶ 17        Fosdick has not filed an appellee’s brief, but he might argue that, immediately after
       Richards’s death, he began showing interest in S.L. and even won permanent custody of her.
       He also might argue that, having been released on probation, he now has resumed his physical
       custody of S.L.
¶ 18        It does not matter. Whether Lee has standing depends on her status on the date she initiated
       her action for custody by filing her original petition. See 23-25 Building Partnership, 381 Ill.
       App. 3d at 755; Brownfield, 283 Ill. App. 3d at 739; CSM Insurance, 272 Ill. App. 3d at 323;
       Village of Kildeer v. Village of Lake Zurich, 167 Ill. App. 3d 783, 786 (1988); Kenroy, Inc., 54
       Ill. App. 3d at 692. On August 18, 2008, when Lee entered this lawsuit by filing her petition for
       custody, the surviving parent, Fosdick, did not have physical custody of S.L., according to the
       allegations of the petition. See Stermer, 2014 IL App (4th) 130079, ¶ 26 (“The issue of [the]
       plaintiff’s standing is determined from the allegations contained in the complaint.”). To
       paraphrase Brownfield, “[Fosdick’s] actions since that date are irrelevant to the issue of [Lee’s]
       standing.” See Brownfield, 283 Ill. App. 3d at 739.

¶ 19                                      III. CONCLUSION
¶ 20       For the foregoing reasons, we reverse the trial court’s judgment and remand this case for
       further proceedings.

¶ 21      Reversed and remanded.




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