The phrase "physical custody," as used in section 601(b)(2), has been defined as requiring a determination of who is providing for the care, custody, and welfare of the child prior to the institution of custody proceedings. (In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 120 Ill. Dec. 698, 524 N.E.2d 728.) Physical custody "requires living with the child for an extended period of time. [Citation.]" (In re Custody of Kulawiak (1993), 256 Ill. App. 3d 956, 962.) The case law requires, as a prerequisite to a nonparent's standing to maintain a custody suit, that the natural parent be shown to have voluntarily relinquished custody or control of the child. The majority goes farther, by reducing the relationship to mere "possession."
Part VI of Illinois Marriage & Dissolution of Marriage Act provides in pertinent part a nonparent may seek custody of a child when the child is not in custody of a parent [750 ILCS 5/601 et seq.] (West 1992). In re Custody of Peterson, 112 Ill. 2d 48, 52-53 (1986). In order to do so, the non-parent must show that the natural parent has relinquished "physical custody" of the child within the meaning of the statute In re Marriage of Rudsell, 291 Ill. App. 3d 626, 632 (1997). Determination that a parent does not have physical custody of a child turns not on possession; rather, it requires a showing that the parent somehow has voluntarily and indefinitely relinquished custody of the child In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995). However, not every voluntary turnover of a child will deprive the parent of physical custody. Rather, the court must consider such factors as (1) who was responsible for the care and welfare of the child prior to initiation of custody proceedings (2) the manner in which physical possession of a child was acquired (3) the nature and duration of the possession Marriage of Rudsell, 291 Ill. App. 3d at 632. To establish standing, a non-parent has the burden of showing that a child is "not in the physical custody of one of his parents" before she can seek custody of the child 750 ILCS 5/601(b)(2) (West 1996) see also Kirchner, 164 Ill. 2d at 490-91, 649 N.E.2d at 334-35 In re Marriage of Rudsell, 291 Ill. App. 3d 626, 632, 684 N.E.2d 421, 425 (1997). Physical possession is not the same as physical custody under Section 601(b)(2) of Illinois Marriage & Dissolution of Marriage Act. Determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child (See In re Custody of Kulawiak (1993), 256 Ill. App. 3d 956, 962 In re Marriage of Sechrest (1990) 202 Ill. App. 3d 865, 873, 148 Ill. Dec. 615, 560 N.E.2d 1212.) Whether relinquishment results from a calculated decision on the parent's part or is the product of abandonment, relinquishment must be voluntary for Section 601(b)(2) to apply Sechrest, 202 Ill. App. 3d at 873. Standing requirement has been viewed as intended to protect both the custody rights of the natural parent and the environmental stability of the child, and therefore it has been observed that the determination of whether a "nonparent's" standing has been established depends on the particular facts involved (See Kulawiak, 256 Ill. App. 3d at 961 (there is "no single fact or litmus test" which controls the finding of physical custody for purposes of standing) In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 783, 122 Ill. Dec. 759, 527 N.E.2d 131 (relevant facts include who has immediate physical possession of the child; how the person took over control; and the nature, manner, and duration of possession) We acknowledge that the numerous appellate decisions considering standing under Section 601(b)(2) have not always focused on voluntary relinquishment as the sole factor in determining whether nonparents have standing. However, this is because voluntary relinquishment does not always vest standing in nonparents under the Act. Indeed, many courts engage in a fact-specific investigation to determine whether a nonparent has physical custody of a child in which not only voluntary relinquishment of the child is considered, but also the intent of the parents when they handed over possession to third parties, the length of transfer and the facts surrounding relinquishment See In re Santa Cruz (1988), 172 Ill. App. 3d 775, 783-86, 122 Ill. Dec. 759, 527 N.E.2d 131 (discussion of factors considered in determining whether a nonparent has physical custody of another parent's child). A standing requirement is useful as a rough filter to prevent the filing of petitions by those who have no legitimate interest in care of the child, but is poorly suited to resolving real disputes between those who do have such interest. Deciding cases by a standing requirement is similar to attempting to decide every case by summary judgment. In fact, it is worse because a motion for summary judgment looks to issues in the case, while the standing requirement addresses only the artificial issue whether the child is "in the physical custody of one of his parents." Broad application of the standing requirement of Section 601(b)(2) will result in awards contrary to best interests of the child. A standing requirement is unnecessary to protect natural rights of the parent In re Custody of Townsend, 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234 (1981) Rudsell, 291 Ill. App. 3d at 633, 684 N.E.2d at 426. Franklin, 288 Ill. App. 3d at 657, 681 N.E.2d at 582, 224 Ill. Dec. 267. At some point, a series of temporary justifications is no longer a credible explanation, and a trier of fact can reasonably conclude that a parent no longer intends a living arrangement to be temporary. It is not necessary that the parent intend to permanently relinquish custody; an intent to indefinitely relinquish custody is sufficient. Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 335. On behalf of a unanimous court, Justice Ward wrote: �The best interest of the child is the standard and it is not necessary that the natural parent be found unfit or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent." (Emphasis added) (Livingston, 42 Ill. 2d at 209, citing Giacopelli, 16 Ill. 2d 556, 158 N.E.2d 613.)
As previously stated, the case is no longer an "adoption case but has become a custody matter". The reason for a custody hearing is not to circumvent vacation of the adoption; instead, it is to ensure that a child who became a Ward of the State is accorded the protections afforded the child by Illinois Law and Constitutional Due Process. �The paramount standard, then, for determining a custody dispute under the applicable statute and case law is the best interest of the child�. *** Of obvious importance in the present case is the capacity of the parties to care for a child appropriately; the length of time in the respondent's custody; his adjustment to home, school, and community; the mental and physical health of all the parties involved; and the potential for physical violence and alcohol abuse in the homes in which he might be placed. Our Legislature has enacted specific provisions, pursuant to the Illinois Marriage & Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 1992)) Adoption Act (750 ILCS 50/1 et seq. (West 1992)), which prescribe legal procedures to be followed when a child is subject to competing claims for custody. Various provisions of the Marriage Act permit interested parties to initiate or intervene in a child custody action, and to obtain a best interests hearing (750 ILCS 5/601, 602 (West 1992). However, custody cases decided pursuant to Section 601 of the Marriage Act require custody determinations to be based on fundamental best-interests factors, which are codified in Section 602 (See, e.g., Ill. Ann. Stat. 1980, ch. 40, par. 602, Historical & Practice Notes, at 17; Cohn v. Scott (1907), 231 Ill. 556, 83 N.E. 191; Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300.) Section 603 of the Act involves Temporary Custody Procedures and Section 610 Governs the Modification of Custody Based on Changed Circumstances 750 ILCS 5/603, 610 (West 1992). The State does have substantial interest in providing minors with healthy stable environments, an interest manifested in the wide variety of Child Welfare & Child Protection Legislation (O�Connor v. Donaldson (1975), 422 U.S. 563, 583, 45 L. Ed. 2d 396, 95 S. Ct. 2486, see also Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438.) It was pursuant to the historic power of Parens Patriae that State Legislature passed the Marriage Act, which requires any child custody determination be in accord with the child's best interests. While the United States Supreme Court found a substantive Due Process Right in protecting family relationships against State interference (see Pierce, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571; Yoder v. Wisconsin (1972), 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526; Moore v. East Cleveland (1977), 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932; Santosky v. Kramer (1982), 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (right to higher burden of proof in order for the State to terminate parental rights)), all these decisions rest on the presumption "that natural bonds of affection lead parents to act in the best interests of their children." Parham v. J.R. (1979), 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493, The legal presumption that parents will act in the best interests of their children fails in the context of a custody battle. Illinois has long rejected the idea that children are chattel, and has embraced the concept that custody should be adjudicated according to the child's best interest (Cohn v. Scott (1907), 231. 556, 558 (stating that the welfare of the child is the paramount consideration to which the claims of all other persons must yield).) Illinois Legislature recognized that custody battles, by their very nature, might force competing parties into a struggle that unnecessarily elevates the Rights of competing adult parties to the detriment of the child's interests (See 750 ILCS 5/601(b)(2) (West 1992); Pub. Act 88-550 eff. July 3, 1994 (adding 750 ILCS 50/20(b)).) This is why in child custody litigation "a child of the parties to it becomes a ward of the court, and the court has the authority and the responsibility to act for the child's care, custody and support until it reaches majority. In discharging this responsibility the court's primary concern obviously is not the wishes of the parents but rather the best interests of the child." (Sommer v. Borovic (1977), 69 Ill. 2d 220, 233, 13 Ill. Dec. 1, 370 N.E.2d 1028 (citing Kelley v. Kelley (1925), 317 Ill. 104, 110, 147 N.E. 659, and McDonald v. McDonald (1973), 13 Ill. App. 3d 87, 90, 299 N.E.2d 787); see also In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 73 Ill. Dec. 10, 453 N.E.2d 835 (noting that the Superior Rights doctrine and the policy of fostering a stable home environment were in direct conflict).) The United States Supreme Court recognizes that "minors, as well as adults, are protected by the Constitution and possess Constitutional Rights" (Planned Parenthood v. Danforth (1976), 428 U.S. 52, 73, 49 L. Ed. 2d 788, 96 S. Ct. 2831.) Further, the Court has "repeatedly held that State Statutes may create Liberty Interests that are entitled to the procedural protections of Due Process Clause of the Fourteenth Amendment." (Vitek, 445 U.S. at 488, 63 L. Ed. 2d at, 100 S. Ct. at; see also Wolff v. McDonnell (1974), 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (Due Process mandates the Provision of Procedures to prevent the arbitrary deprivation of a Right created by State Statute).)
In order for a Statute to grant a person a protected Liberty Interest, the person must "have a legitimate claim of entitlement" to the Liberty Interest. (Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100, quoting Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) A Liberty Interest created by Statute includes the right to the Requisite Procedures necessary to protect that Liberty Interest (Connecticut Board of Pardons v. Dumschat (1981), 452 U.S. 458, 463, 69 L. Ed. 2d 158, 101 S. Ct. 2460, citing Wolff, 418 U.S. at 557, 33 L. Ed. 2d at, 92 S. Ct. at.) The extent of Constitutional Due Process Protection is not limited to the protection of Fundamental Rights. Therefore, as our Supreme Court has ruled, "a person's Liberty is equally protected, even when the Liberty itself is a statutory creation of the State. The touchstone of Due Process is protection of the individual against arbitrary action of Government." Wolff, 418 U.S. at 558, 33 L. Ed. 2d at, 92 S. Ct. Under Illinois law, section 602 of the Marriage Act grants the "legitimate claim of entitlement" to have custody determined in a hearing "in accordance with a child�s best interest." (750 ILCS 5/602(a (West 1992).) In Section 602, the Illinois Legislature created a Constitutionally Protected Liberty Interest in a child's emotional and psychological relationship with the child's nonparent lawful custodians. A child�s Due Process Liberty Interest is the Statutory Right to have any change in custody adjudicated in a Hearing in accord with his "best interests." In a Custody Hearing, the Trial Court has broad discretion to tailor custody arrangements to a wide variety of circumstances and modify custody orders (See 750 ILCS 5/603 (temporary orders); 610 (modification) (West 1992).) Under the Marriage Act and Section 20 of the Adoption Act, a best interests hearing takes place whenever there is a change or modification of custody. A child's right to a best interests custody hearing is a Procedure necessary to protect the child's relationship with his third party legal custodians against summary and arbitrary termination. Trial Court is the proper forum to conduct a fact-finding Hearing that would result in a custody determination in accord with a child�s best interests (Goldstein, Freud, & Solnit, Beyond the Best Interests of the Child(1973)(when a child is removed from his home, the child's emotional ties to his parents are disrupted and the child will likely be traumatized).) One of the purposes of a custody hearing is to provide for orderly change or modification in custody without exposing the child to risk of undue harm. , The "natural" family, which is accorded the greatest Constitutional Protection against State interference, is composed of three basic elements: first, the biological relationship between parent and child Smith, 431 U.S. at 843, 53 L. Ed. 2d at 97 S. Ct. at, citing Stanley v. Illinois (1972), 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208,) second, the marriage relationship (Smith, 431 U.S. at 843-44, 53 L. Ed. at, 97 S. Ct. at, citing Griswold v. Connecticut (1965), 381 U.S. 479, 486, 14 L. Ed. 2d 510, , 85 S. Ct. 1678) third, the emotional and psychological attachment involved in the daily activities of raising a child ( Smith, 431 U.S. at 844, 53 L. Ed. at , citing Yoder v. Wisconsin (1972), 406 U.S. 205, 231-33, 32 L. Ed. 2d 15, 92 S. Ct. 1526,).
The Adoption Act mandates a finding of unfitness before parental rights may be terminated. Moreover, we note the extremely adverse Public Policy Ramifications of holding that parents and their offspring can be deprived of the care, custody and control of the natural parent through the deceitful circumvention of the safeguards afforded natural parents in the Adoption Act: namely, the Right to notice and the absolute Right to veto the adoption absent a finding of unfitness. It would be a grave Injustice to all mothers, fathers and children, to allow deceit, subterfuge and the erroneous rulings of Lower Courts, together with the passage of time resulting from the persistent and intransigent efforts to retain custody of a child, to inure to the benefit of one party at the expense of the Right of the child to develop and maintain a family relationship in his best interests.