II. Law and Discussion
Section 601 of the Illinois Marriage and Dissolution of 
Marriage Act allows a non-parent to file a 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 
1994). For purposes of determining who has physical custody of 
the child, courts do not solely look at who has physical 
possession of child at time of filing. In Re Custody of 
Peterson, 112 Ill. 2d 48, 54, 96 Ill. Dec. 690, 491 N.E.2d 
1150 (1986). Instead, the courts also consider how that 
possession came about and the nature and duration of the 
possession. In re Marriage of Carey, 188 Ill. App. 3d 1040, 
1048, 136 Ill. Dec. 518, 544 N.E.2d 1293 (1989). The courts 
have also looked to who is providing for the child's care, 
custody and welfare. In re Marriage of Kulawiak, 256 Ill. App. 
3d 956, 962, 628 N.E.2d 431, 194 Ill. Dec. 934 (1993). In 
order for a non-parent to have physical custody of the child, 
the parents must have "voluntarily and indefinitely 
relinquished custody of the child." In re Petition of 
Kirchner, 164 Ill. 2d 468, 491, 208 Ill. Dec. 268, 649 N.E.2d 
324 (1995). The party seeking to intervene bears the burden of 
establishing standing. In re Marriage of Sechrest, 202 Ill. 
App. 3d 865, 870, 148 Ill. Dec. 615, 560 N.E.2d 1212 (1990). 
Once standing has been established, the court will apply the 
best interests of the child standard in resolving the custody 
dispute. 750 ILCS 5/602 (West 1994). 
The 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 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. Marriage of 
Rudsell, 291 Ill. App. 3d at 632. 


See Peterson, 112 
Ill. 2d at 54, 491 N.E.2d at 1153; Carey, 188 Ill. App. 3d at 
1049, 544 N.E.2d at 1298; Montgomery v. Roudez, 156 Ill. App. 
3d 262, 509 N.E.2d 499, 108 Ill. Dec. 803 (1987). 
See Kirchner, 164 Ill. 2d at 491, 649 N.E.2d at 
335; see 
also In re Custody of Peterson, 112 Ill. 2d 48, 53-54, 491 
N.E.2d 1150, 1152-53, 96 Ill. Dec. 690 (1986).