                                                  FIRST DIVISION
                                                  June 27, 2008




No. 1-08-0203


In Re CUSTODY OF                  )     Circuit Court
                                  )     of Cook County.
M.C.C., a Minor                   )
(Matthew Miguel C.,               )
Petitioner-Appellee, v. Aisha Umer,)
Respondent (Hameeda Mohamed,      )     06 D 79411
Third-Party Defendant and         )
Counterpetitioner-Appellant)).    )
                                  )     The Honorable
                                  )     Fe Fernandez,
                                  )     Judge Presiding.
                                  )


    JUSTICE GARCIA delivered the opinion of the court:

    Matthew C., the biological father of M.C.C., filed a

petition for sole custody of M.C.C. after the death of Aisha

Umer, M.C.C.'s biological mother.   Third-party defendant Hameeda

Umer, listed on the caption as Hameeda Mohamed, M.C.C.'s maternal

grandmother, contends the trial court erred when it found she did

not have standing to pursue a petition for custody of M.C.C.

Hameeda also contends the trial court erred when it denied her

motion to reconsider.   For the reasons that follow, we affirm.

                           BACKGROUND

    On September 14, 2005, Aisha gave birth to M.C.C.      At that

time, Matthew signed a "Voluntary Acknowledgment of Paternity,"

confirming he is M.C.C.'s biological father.
No. 1-08-0203

    On February 11, 2006, Aisha died in a car accident.

    On March 3, 2006, Hameeda filed a petition for custody and

adoption of M.C.C. in the circuit court of DuPage County.     In her

petition, Hameeda alleged that M.C.C. had always lived with her

and that Matthew was an unfit parent because he had not

established a relationship with M.C.C. and did not support M.C.C.

financially.

    On March 9, 2006, Matthew filed a petition for sole custody

of M.C.C. in the circuit court of Cook County.     The petition

alleged that Matthew had a relationship with M.C.C. and that

M.C.C. had lived with Matthew and Aisha from his birth until

January of 2006.    Though the petition admitted M.C.C. currently

resided with Hameeda, Matthew denied transferring physical

custody of M.C.C. to Hameeda.

    On March 16, 2006, the trial court entered an order finding

Matthew was "the natural and biological father" of M.C.C.     Though

no changes in custody were made at that time, Hameeda was ordered

to appear in court on March 27.

    On March 27, the trial court set a hearing date for

Matthew's custody petition.     The court's order stated that should

Hameeda fail to appear at the hearing on April 4, 2006, a default

judgment could be entered against her.

    On March 29, 2006, Hameeda was first served with Matthew's

custody petition.    On March 31, Hameeda filed a motion to dismiss

Matthew's petition based on her earlier filed custody action

pending in DuPage County.     In an affidavit attached in support of
No. 1-08-0203

the motion, Hameeda averred that M.C.C. had resided in her home

since his birth.

     On April 4, 2006, Hameeda and her counsel did not appear in

court.     The trial court entered an order finding (1) there was no

court order naming Hameeda as a third-party defendant, (2)

Hameeda had not appeared, (3) Matthew was not served in the

DuPage County litigation, (4) Matthew, a resident of Cook County,

had filed the instant petition for custody in his county of

residence, and (5) Matthew was the only party before the court

with standing to have custody of M.C.C.     The court granted

Matthew custody of M.C.C. and ordered Hameeda to turn M.C.C. over

to Matthew that evening.

     Hameeda filed an emergency motion to vacate.     The trial

court stayed the April 4, order until noon the next day.

     On April 5, 2006, the trial court entered an agreed order.

The court vacated the stay and granted Matthew sole custody of

M.C.C., pending further court order.     The court ordered Hameeda

to turn M.C.C. over to Matthew that afternoon, allowed Hameeda to

withdraw her motion to dismiss, and granted Hameeda leave to file

a counterpetition for custody and adoption.     Discovery on the

issue of standing was to start immediately, with the trial court

reserving its "ultimate ruling" on the issue of Hameeda's

standing.1


     1
         Hameeda filed an interlocutory appeal of the trial court's

orders of April 4 and April 5, contending the trial court erred
No. 1-08-0203

       On May 3, 2006, Matthew filed a motion to dismiss the

counterpetition, alleging Hameeda lacked standing under section

601(b)(2) of the Illinois Marriage and Dissolution of Marriage

Act to pursue her petition for custody of M.C.C. because Hameeda

could not show that M.C.C. was not in the continuous physical

custody of one of his parents since birth.     750 ILCS 5/601(b)(2)

(West 2006).

       On December 7, 2006, the trial court began an evidentiary

hearing on the issue of Hameeda's standing, which was continued

to December 13 and concluded on January 4, 2007.

       Hameeda presented her own testimony and that of nine

witnesses.     Among the witnesses were three of Hameeda's children.

Hameeda and the witnesses testified that Hameeda was M.C.C.'s

primary caretaker and that M.C.C. had always lived in Hameeda's

home.    Hameeda also testified that Aisha wanted Hameeda to care

for M.C.C. and that Matthew had told her he did not intend to

support or care for M.C.C.

       Additionally, Hameeda's three children testified that before

Aisha's death Matthew had visited M.C.C. between two and four

times at Hameeda's home.



when it issued various rulings without an evidentiary hearing.

We affirmed the trial court's orders and remanded to resolve the

issues left unaddressed.     In re Custody of M.C.C., No 1-06-1211

(September 9, 2006) (unpublished order under Supreme Court Rule

23).
No. 1-08-0203

    Matthew presented his testimony and that of his grandmother.

Matthew testified that he had given Aisha money and clothing for

M.C.C., that he had paid daily attention to M.C.C., and that

Aisha and M.C.C. had slept with him at his grandmother's home

numerous times.    Matthew also testified that he and Aisha were

planning to get married and that he, Aisha, and M.C.C. were a

family.

    Matthew's grandmother testified that Aisha and M.C.C. had

spent time at her home and that Aisha had left M.C.C. there in

Matthew's care.

    On February 28, 2007, the trial court heard oral argument on

the issue of Hameeda's standing.

    On June 25, 2007, the trial court issued its ruling.     The

court found that although Hameeda helped her daughter to care for

M.C.C., Aisha had retained physical custody of M.C.C. until her

death.    The court further found Matthew had "attempted to see his

child in spite of the strained relationship" with Aisha's family,

had "spent some periods of time" with M.C.C., though the court

believed the actual amount was neither as lengthy as Matthew

claimed nor as brief as Hameeda alleged, and had asked for

physical possession of M.C.C. in a timely manner after Aisha's

death.

    The trial court dismissed Hameeda's petition for custody,

finding Hameeda had not met her burden to prove that Matthew had

voluntarily relinquished custody of M.C.C.

    On July 25, 2007, Hameeda filed a motion to reconsider,
No. 1-08-0203

which the trial court denied on December 3, 2007.

    On January 25, 2008, this court granted Hameeda leave to

file a late notice of appeal.

                              ANALYSIS

    Hameeda contends the trial court erred when it found she did

not have standing to pursue her petition for custody of M.C.C.

and when it denied her motion to reconsider.2

    Matthew has not filed a brief on appeal.     We therefore

review the issues under the standards set forth in First Capitol

Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,

345 N.E.2d 493 (1976).

                        I. Hameeda's Standing

    Illinois law recognizes the "superior rights of a natural

parent to the care, custody and control of his or her child."       In

re Marriage of Carey, 188 Ill. App. 3d 1040, 1046, 544 N.E.2d

1293 (1989).     The law presumes the natural parent's right to

physical custody of his child is superior to that of a nonparent

and that it is in the best interest of the child to be raised by

natural parents.     In re Marriage of Sechrest, 202 Ill. App. 3d

865, 875, 560 N.E.2d 1212 (1990).     A nonparent has standing to


    2
        It appears Hameeda abandoned her petition seeking adoption

as no claim is raised that Matthew is unfit to have custody of

the child.     See In re Marriage of Sechrest, 202 Ill. App. 3d 865,

870, 560 N.E.2d 1212 (1990) (if nonparent cannot establish

standing, only recourse is to establish unfitness).
No. 1-08-0203

petition for custody of a child "only if [the child] is not in

the physical custody of one of his parents."     750 ILCS

5/601(b)(2) (West 2006).    "Standing" in this context refers to a

statutory requirement the nonparent must meet before the trial

court proceeds to the merits of the petition for custody.           In re

R.L.S., 218 Ill. 2d 428, 436, 844 N.E.2d 22 (2006).

    Whether a child "is not in the physical custody of one of

his parents" is not subject to a clear test.     Carey, 188 Ill.

App. 3d at 1047.    It is clear, however, that physical custody is

not determined based on physical possession of the child at time

the custody petition is filed.     Physical possession of a child

does not necessarily translate into physical custody of that

child.    See In re Custody of Peterson, 112 Ill. 2d 48, 53-54, 491

N.E.2d 1150 (1986) (standing "should not turn on" who had the

child when the custody petition was filed).

    In order to meet the standing requirement, the nonparent

cannot merely rely on physical possession of the child.        The

nonparent must show the biological parents no longer have

physical custody of the child because the parents "voluntarily

and indefinitely relinquished custody of the child."        In re

Custody of Ayala, 344 Ill. App. 3d 574, 588, 800 N.E.2d 524

(2003).    When determining whether a voluntary relinquishment of

physical custody has taken place, the court considers who cared

for the child before the custody petition was filed, how the

nonparent gained physical possession, and the "nature and

duration" of the possession.     In re A.W.J., 316 Ill. App. 3d 91,
No. 1-08-0203

96, 736 N.E.2d 716 (2000), aff'd, 197 Ill. 2d 492, 758 N.E.2d 800

(2001).   Because no one factor controls, the outcome in each case

is highly fact dependent.    Carey, 188 Ill. App. 3d at 1048.

    Whether a nonparent has standing to pursue a custody

petition is a question of law, reviewed de novo.    In re A.W.J.,

316 Ill. App. 3d at 96.

    Aisha, as M.C.C's natural mother, had "superior right to the

care and custody of *** her child[]."    In re Custody of Groff,

332 Ill. App. 3d 1108, 1112, 774 N.E.2d 826 (2002).      The law

recognizes that Aisha had physical custody of M.C.C. from birth,

unless and until that custody is relinquished or removed by court

action.   See Groff, 332 Ill. App. 3d at 1114 (upon vacating court

order granting custody of minor child to grandparents, it is

"logical that custody would revert to the individual who

maintained custody prior to [the entry of the court order]--the

natural mother").    Matthew, as M.C.C.'s natural father, shares

that "superior right" as to third parties.    750 ILCS 45/5(a)(4)

(West 2006) (once a natural mother and a man have "signed an

acknowledgment of parentage," the man is presumed to be the

child's natural father).    In order for Hameeda to establish

standing to proceed with her petition for custody, she must not

only show that Matthew, as M.C.C's remaining natural parent,

voluntarily relinquished physical custody of M.C.C. but that

Aisha did as well.    See Peterson, 112 Ill. 2d at 54.

    In Peterson, the terminally ill mother, who had physical

custody of the child, lived with the child in the maternal
No. 1-08-0203

grandparents' home.     The father had visitation rights, which he

exercised.     After the mother died, the grandparents refused to

turn the child over to the father.

    Our supreme court found that though the grandparents

assisted their terminally ill daughter in caring for the child,

the grandparents did not acquire physical custody because the

mother and child "were never separated for an appreciable

period."     Peterson, 112 Ill. 2d at 54.   Because the father had

exercised regular visitation and shown an interest in the child,

physical custody of the child transferred to him upon the

mother's death, even though the grandparents had physical

possession.      Peterson, 112 Ill. 2d at 54.    As the child was

never out of the physical custody of one of her parents, the

grandparents did not have standing to pursue a custody petition.

    The holding of Peterson is clear: upon the death of the

custodial parent, "the minor child will then be considered to be

in the physical custody of the surviving natural parent," even if

the child is living with someone else.      In re Custody of

O'Rourke, 160 Ill. App. 3d 584, 587-88, 514 N.E.2d 6 (1987).

    Hameeda contends the trial court erred by dismissing her

petition for custody because the testimony presented at the

standing hearing showed Matthew and Aisha had voluntarily

relinquished custody of M.C.C. to Hameeda based on Hameeda's

purported role as M.C.C.'s primary provider and caretaker, a role

she alleges Aisha and Matthew encouraged.       Hameeda additionally

contends the testimony at the hearing supported her contentions
No. 1-08-0203

that Matthew did not regularly visit M.C.C. and did not show any

interest in caring for M.C.C.

    The testimony presented at the evidentiary hearing was, as

the trial court concluded, "diametrically opposed and emotionally

charged."   However, the evidence presented at the hearing did not

show that Aisha or Matthew had voluntarily relinquished custody

of M.C.C to Hameeda.   We agree with the trial court's conclusions

that Hameeda is a "loving" grandparent who helped her daughter to

care for M.C.C., but the child remained in Aisha's physical

custody until her death, after which Matthew requested physical

custody in a timely manner.

    Hameeda's other contentions, that Matthew did not exercise

regular visitation and showed no interest in providing for

M.C.C., similarly fail.     Hameeda, herself, testified that Matthew

visited M.C.C., that M.C.C. spent at least two nights at

Matthew's home during the first four months of his life, and that

Matthew called Aisha frequently to discuss M.C.C.

    On our de novo review, we conclude, as the trial court did,

that Hameeda did not have standing to seek custody of M.C.C.

                  II. The Motion to Reconsider

    Hameeda also contends the trial court erred when it denied

her motion to reconsider.

    We review the trial court's ruling on a motion to reconsider

for an abuse of discretion.     General Motors Acceptance Corp. v.

Stoval, 374 Ill. App. 3d 1064, 1078, 872 N.E.2d 91 (2007).     A

motion to reconsider alerts the court to "newly discovered
No. 1-08-0203

evidence, changes in the law, or errors in the court's previous

application of existing law."          General Motors Acceptance Corp.,

374 Ill. App. 3d at 1078.

    Because Hameeda's motion to reconsider only contends the

trial court erred in its application of existing law and because

we find the trial court did not err, the trial court properly

denied the motion to reconsider.

                                 CONCLUSION

    For the reasons stated above, the decision of the circuit

court of Cook County is affirmed.

    Affirmed.

    CAHILL, P.J., and WOLFSON, J., concur.
No. 1-08-0203


         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
     _________________________________________________________________

          In Re CUSTODY OF M.C.C., a Minor
          (Matthew Miguel C.,
                 Petitioner-Appellee,
          v.
          Aisha Umer,
                 Respondent
          (Hameeda Mohamed,
                 Third-Party Defendant and Counterpetitioner-Appellant)).
     ________________________________________________________________

                                 No. 1-08-0203

                           Appellate Court of Illinois
                          First District, First Division

                             Filed: June 27, 2008
     _________________________________________________________________

              JUSTICE GARCIA delivered the opinion of the court.

                   CAHILL, P.J. and WOLFSON, J., concur.
     _________________________________________________________________

                 Appeal from the Circuit Court of Cook County
                    Honorable Fe Fernandez, Judge Presiding
     _________________________________________________________________

For Hameeda Mohamed                  Gregory A. Adamski
THIRD-PARTY DEFENDANT                Matthew Vasconcellos
and COUNTERPETITIONER-               Adamski & Conti
APPELLANT                            100 N. LaSalle Street
                                     Chicago, Illinois 60602
