Timmons v. Ronald L.S.

Docket No. 100081.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re R.L.S., a Minor (Marsha Timmons, on Behalf of R.L.S.,

Appellee, v. Ronald L.S., Appellant).

Opinion filed February 2, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the court,

with opinion.

Justices McMorrow, Freeman, Fitzgerald, Kilbride, Garman, and

Karmeier concurred in the judgment and opinion.

OPINION

At issue in this appeal is the standing requirement for

guardianship petitioners under article 11 of the Probate Act of 1975

(Probate Act) (755 ILCS 5/11B1 et seq. (West 2004)).

BACKGROUND

The minor, R.L.S., is the daughter of Karyn S. and respondent,

Ronald S. On December 15, 2002, Karyn died in an automobile

accident. At the time of her death, Karyn and respondent were

separated. Karyn and R.L.S. had been living with Karyn=s maternal

grandmother, Alma Meyers. Respondent resided in Florida.

Following Karyn=s death, R.L.S.=s maternal grandparents, Ronald and

Marsha Timmons (petitioners), filed a petition in the circuit court of

La Salle County to be appointed R.L.S.=s temporary and permanent

guardians. The trial court entered an ex parte order appointing

petitioners temporary guardians of R.L.S. and set the matter for a

hearing.

Respondent moved to dismiss the petition, arguing that

petitioners lacked standing to bring a petition for guardianship. The

trial court denied the motion. The court relied on section 11B5(b) of

the Probate Act (755 ILCS 5/11B5(b) (West 2004)). The court noted

that, under this provision, petitioners could establish standing if they

could rebut the presumption that respondent was willing and able to

make and carry out day-to-day child care decisions concerning R.L.S.

Following an evidentiary hearing and written arguments by the

parties, the court concluded that respondent was correct that

petitioners lacked standing. In a written order dismissing the

guardianship petition, the court stated that, initially, it had been under

the impression that the sole standing requirement to petition for

guardianship was set forth in section 11B5(b). The court later

determined, however, that it was bound by a line of appellate court

cases, beginning with In re Person & Estate of Newsome, 173 Ill.

App. 3d 376 (1988), which held that the standing requirement for

nonparents who petition for custody under the Illinois Marriage and

Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq.

(West 2004)) should be read into the Probate Act. The standing

requirement for nonparents under the Marriage Act is provided in

section 601(b)(2), which states that a child custody proceeding may

be commenced by a person other than a parent Aonly if [the child] is

not in the physical custody of one of his parents.@ 750 ILCS

5/601(b)(2) (West 2004). The trial court noted that this language has

been interpreted to mean that the nonparent must show that the parent

has voluntarily and indefinitely relinquished custody of the child.

See, e.g., In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995).

Because respondent had not voluntarily and indefinitely relinquished

custody of R.L.S., the trial court concluded that petitioners lacked

standing and that the petition for guardianship had to be dismissed.

Petitioners appealed, and the appellate court reversed. 354 Ill.

App. 3d 462. The appellate court held that the sole standing

requirement for guardianship petitioners is stated in section 11B5(b)

of the Probate Act. The court specifically rejected Newsome=s

analysis. Newsome based its decision on the incorporation of the

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superior rights doctrine into both the Marriage Act and the Probate

Act. The superior rights doctrine is a presumption that parents have

the superior right to care, custody, and control of their children. In re

Custody of Peterson, 112 Ill. 2d 48, 51 (1986). Newsome reasoned

that, because both the Marriage Act and the Probate Act incorporate

the superior rights doctrine, petitioners under the Probate Act should

have to meet the standing requirement of the Marriage Act.

Newsome, 173 Ill. App. 3d at 379. In the present case, the appellate

court rejected this analysis, holding that Ahow the superior rights

doctrine is effectuated in one act is irrelevant to application of the

same doctrine in another.@ 354 Ill. App. 3d at 466. The appellate

court remanded the cause to the trial court to resolve the standing

question under section 11B5(b) of the Probate Act. 354 Ill. App. 3d at

468. We allowed respondent=s petition for leave to appeal. 177 Ill. 2d

R. 315.

ANALYSIS

The primary objective in construing a statute is to give effect to

the legislature=s intent, presuming the legislature did not intend to

create absurd, inconvenient or unjust results. In re Madison H., 215

Ill. 2d 364, 372 (2005). Accordingly, courts should consider the

statute in its entirety, keeping in mind the subject it addresses and the

legislature=s apparent objective in enacting it. People v. Davis, 199

Ill. 2d 130, 135 (2002). The best indication of legislative intent is the

statutory language, given its plain and ordinary meaning. Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). When the

statutory language is clear, it must be given effect without resort to

other tools of interpretation. In re Marriage of Rogers, 213 Ill. 2d

129, 136 (2004). Moreover, this court has a duty to construe a statute

in a manner that upholds its validity and constitutionality if it

reasonably can be done. People v. Malchow, 193 Ill. 2d 413, 418

(2000). Issues of statutory construction are reviewed de novo. In re

Michelle J., 209 Ill. 2d 428, 434 (2004).

Respondent argues that the appellate court erred in failing to

follow other appellate court decisions holding that the standing

requirement of the Marriage Act must be read into the Probate Act.

See, e.g., Newsome, 173 Ill. App. 3d at 379; In re Marriage of

Haslett, 257 Ill. App. 3d 999, 1006 (1994); In re Person & Estate of

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Barnhart, 232 Ill. App. 3d 317, 320-21 (1992). We disagree. As

petitioners point out, the rule that petitioners under the Probate Act

must satisfy the standing requirement of the Marriage Act was first

stated in Newsome, a case decided before the legislature added a

standing requirement for guardianship petitioners to the Probate Act.

The reasoning of Newsome was as follows. The superior rights

doctrine, which holds that parents have the superior right to care,

custody, and control of their children, is incorporated in both the

Marriage Act and the Probate Act. The Probate Act recognizes the

doctrine in section 11B7, which provides:

AIf both parents of a minor are living and are competent to

transact their own business and are fit persons, they are

entitled to the custody of the person of the minor and the

direction of his education. If one parent is dead and the

surviving parent is competent to transact his own business

and is a fit person, he is similarly entitled. The parents have

equal powers, rights and duties concerning the minor. If the

parents live apart, the court for good reason may award the

custody and education of the minor to either parent or to some

other person.@ 755 ILCS 5/11B7 (West 2004).

The superior rights doctrine is also recognized in section 601(b)(2) of

the Marriage Act. Section 601, which is entitled AJurisdiction;

Commencement of Proceeding,@ provides in subsection (b)(2) that a

custody proceeding may be commenced by a nonparent Aby filing a

petition for custody of the child in the county in which he is

permanently resident or found, but only if he is not in the physical

custody of one of his parents.@ 1 750 ILCS 5/601(b)(2) (West 2004).

This court has interpreted this section as a standing requirement for

nonparents. Peterson, 112 Ill. 2d at 52. That is, for a nonparent to

have standing to seek custody under the Marriage Act, the nonparent

must first show that the child is not in the physical custody of one of

1

In Siegel v. Siegel, 84 Ill. 2d 212, 220-21 (1981), this court explained

that the term Ajurisdiction@ in a previous version of section 601 did not refer

to subject matter jurisdiction in the traditional sense, which is conferred by

the Illinois Constitution, but rather to a limitation on the court=s exercise of

its existing jurisdiction.

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his parents. 2 Newsome held that, because the Marriage Act and the

Probate Act both incorporate the superior rights doctrine, a petitioner

under the Probate Act must also meet the standing requirement of the

Marriage Act. Newsome, 173 Ill. App. 3d at 379.

After Newsome was decided, the legislature amended section

11B5(b) of the Probate Act to add a standing requirement. Section

11B5(b) now provides as follows:

AThe court lacks jurisdiction to proceed on a petition for

the appointment of a guardian of a minor if (i) the minor has a

living parent, adoptive parent or adjudicated parent, whose

parental rights have not been terminated, whose whereabouts

are known, and who is willing and able to make and carry out

day-to-day child care decisions concerning the minor, unless

the parent or parents consent to the appointment or, after

receiving notice of the hearing under Section 11B10.1, fail to

object to the appointment at the hearing on the petition or (ii)

there is a guardian for the minor appointed by a court of

competent jurisdiction. There shall be a rebuttable

presumption that a parent of a minor is willing and able to

make and carry out day-to-day child care decisions

concerning the minor, but the presumption may be rebutted

by a preponderance of the evidence.@ 755 ILCS 5/11B5(b)

(West 2004).

In In re Estate of Johnson, 284 Ill. App. 3d 1080, 1090 (1996), the

appellate court, relying on this court=s case law interpreting section

601(b)(2) of the Marriage Act, interpreted this to be a standing

requirement for nonparents. The court determined that section

2

This court later clarified in In re A.W.J., 197 Ill. 2d 492, 496-97 (2001),

that, when used in this sense, Astanding@ does not have the traditional

meaning of a requirement that a litigant has a justiciable interest in a

controversy. Rather, it merely refers to a threshold issue that must be

determined before the court may proceed to a Abest interests@ determination.

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11B5(b) was intended to prevent the circuit court from exercising

jurisdiction when the petitioner lacks standing. Johnson, 284 Ill. App.

3d at 1090. We agree with this interpretation. This court interpreted

the similar provision of section 601(b)(2) as a standing requirement

for nonparents (Peterson, 112 Ill. 2d at 52), but later clarified that,

when used in this sense, Astanding@ simply referred to a threshold

statutory requirement that had to be met before the court could

proceed to a decision on the merits (see A.W.J., 197 Ill. 2d at 496-97).

Thus, to have standing to proceed on a petition for custody under the

Marriage Act, a petitioner must show that the child is not in the

physical custody of one of his or her parents. 750 ILCS 5/601(b)(2)

(West 2004); Peterson, 112 Ill. 2d at 52. To have standing to proceed

on a petition for guardianship under the Probate Act, when the minor

has a parent whose whereabouts are known, the petitioner must rebut

the statutory presumption that the parent is Awilling and able to make

and carry out day-to-day child care decisions concerning the minor.@

755 ILCS 5/11B5(b) (West 2004); see Johnson, 284 Ill. App. 3d at

1091. It is presumed that, when enacting new legislation, the

legislature acts with full knowledge of previous judicial decisions

addressing the subject matter of that legislation. People v. Jones, 214

Ill. 2d 187, 199 (2005). By enacting a standing requirement for

guardianship petitioners after the courts had held that the proper

standing requirement was that stated in the Marriage Act, the

legislature made its intention clear. Regardless of whether Newsome

was correct when decided, it is clearly not correct now, as the

legislature has added a standing requirement to the Probate Act.

Respondent maintains, nevertheless, that the Newsome court=s

reading of the Probate Act is necessary to preserve the Act=s

constitutionality. Respondent contends that, unless guardianship

petitioners under the Probate Act are required to show that the child

is not in the physical custody of one of his parents, the Probate Act

violates the parents= due process rights.

Petitioners contend that respondent has waived any constitutional

arguments because he did not make them in the trial court or in the

appellate court and because he did not notify the Attorney General

pursuant to Supreme Court Rule 19 (134 Ill. 2d R. 19). We disagree.

Respondent won in the trial court and was the appellee in the

appellate court. A >Where the trial court is reversed by the Appellate

Court and the appellee in that court brings the case here for further

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review, he may raise any questions properly presented by the record

to sustain the judgment of the trial court, even though those questions

were not raised or argued in the Appellate Court.= @ Dineen v. City of

Chicago, 125 Ill. 2d 248, 264 (1988), quoting Mueller v. Elm Park

Hotel Co., 391 Ill. 391, 399 (1945). Respondent had no reason to

raise the due process argument before now. In the trial court, he

argued that Newsome supplied the proper standing requirement, and

the trial court agreed with him. Respondent contends that, by

rejecting Newsome, the appellate court placed an unconstitutional

construction on the statute. We also do not believe that Rule 19

required respondent to notify the Attorney General of this argument.

Rule 19(a) requires a party to serve notice on the Attorney General

when the constitutionality of a statute is being challenged. 134 Ill. 2d

R. 19(a). The purpose of the notice is to allow the Attorney General

to intervene and defend the constitutionality of the challenged

provision. 134 Ill. 2d R. 19(c). Here, however, respondent is not

arguing that section 11B5(b) of the Probate Act is unconstitutional

and thus unenforceable. He is merely arguing that due process

requires reading this section in conjunction with section 601(b)(2) of

the Marriage Act and applying the latter to proceedings under both

the Probate Act and the Marriage Act. Under these circumstances, we

do not believe that respondent was required to notify the Attorney

General of this argument.

Respondent=s due process argument is based on Troxel v.

Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000)

(plurality op.). In Troxel, the Supreme Court considered a challenge

to a Washington statute that allowed any person to petition for

visitation rights A >at any time,= A and authorized the court to grant

visitation rights whenever A >visitation may serve the best interest of

the child.= @ Troxel, 530 U.S. at 60, 147 L. Ed. 2d at 53, 120 S. Ct. at

2057, quoting Wash. Rev. Code '26.10.160(3) (2005). The Supreme

Court affirmed the Washington Supreme Court=s determination that

the statute was unconstitutional. The Court based its decision on the

due process clause of the Fourteenth Amendment, which A >provides

heightened protection against government interference with certain

fundamental rights and liberty interests.= @ Troxel, 530 U.S. at 65, 147

L. Ed. 2d at 56, 120 S. Ct. at 2060, quoting Washington v.

Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct.

2258, 2267 (1997). The court stated that the liberty interest of parents

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in the care, custody and control of their children is Aperhaps the oldest

of the fundamental liberty interests recognized by [the] Court.@

Troxel, 530 U.S. at 65, 147 L. Ed. 2d at 56, 120 S. Ct. at 2061. In

holding that the statute violated due process as applied to the case

before it, the Supreme Court identified two principal problems. First,

the statute was Abreathtakingly broad.@ Troxel, 530 U.S. at 67, 147 L.

Ed. 2d at 57, 120 S. Ct. at 2061. By allowing any person to petition

for visitation at any time, and allowing the court to grant visitation

rights whenever visitation may serve the best interest of the child, the

statute subjected any visitation decision by a parent to state court

review. Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57, 120 S. Ct. at

2061. The statute accorded no deference to a parent=s determination

of whether visitation was in the child=s best interests, instead leaving

the matter entirely in the judge=s hands.

Second, there had been no court finding, or even an allegation,

that the custodial parent was unfit. The Court noted the presumption

that fit parents act in the best interests of their children. Troxel, 530

U.S. at 68, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061. The Court

explained that, Aso long as a parent adequately cares for his or her

children (i.e., is fit), there will normally be no reason for the State to

inject itself into the private realm of the family to further question the

ability of that parent to make the best decisions concerning the

rearing of that parent=s children.@ Troxel, 530 U.S. at 68-69, 147 L.

Ed. 2d at 58, 120 S. Ct. at 2061. The Court held that if a fit parent=s

parenting decisions were going to be subject to judicial review, the

courts must accord at least some special weight to the parent=s own

determination. Troxel, 530 U.S. at 70, 147 L. Ed. 2d at 59, 120 S. Ct.

at 2061. This court later relied on Troxel to invalidate an Illinois

statute that allowed a court to award visitation to grandparents,

great-grandparents, or the sibling of a minor child if the court

determined that it was in the best interests and welfare of the child.

Wickham v. Byrne, 199 Ill. 2d 309 (2002). This court found that, like

the statute at issue in Troxel, the Illinois statute placed parents on

equal footing with those seeking visitation and contravened the

presumption that parents are fit and act in the best interests of their

children. In other words, the statute allowed a trial judge to second-

guess a fit parent=s decisions as to what was in a child=s best interests.

Wickham, 199 Ill. 2d at 320.

We disagree with respondent=s assertion that the Probate Act,

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when not read in conjunction with section 601(b)(2) of the Marriage

Act, suffers from the same infirmities identified by the courts in

Troxel and Wickham. Respondent argues that, just as the Washington

statute allowed Aany person@ to petition for visitation at Aany time,@

the Probate Act allows any qualified nonfelon adult (755 ILCS

5/11B3(a) (West 2004)) to commence a guardianship proceeding

simply by filing a petition (755 ILCS 5/11B5(a) (West 2004)).

Respondent contends that the problem is cured if Newsome is

followed and the court is required to dismiss a guardianship petition

if the child is in the physical custody of one of his parents.

While it is true that the Probate Act places only minimum limits

on who may file a petition for guardianship, the Probate Act does not

suffer from the first infirmity identified by the Supreme Court in

Troxel. The problem with the Aany person@ at Aany time@ language

considered in Troxel was that it allowed any visitation decision by a

fit parent to be subject to state court review. Once a visitation petition

was filed, the statute allowed the matter to go directly to a best-

interests hearing before a judge, and the parent=s determination of the

child=s best interests would be given no deference at the hearing.

Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57-58, 120 S. Ct. at 2061. By

contrast, the Probate Act prevents the court from proceeding to the

merits of the guardianship petition if the child Ahas a living parent,

adoptive parent or adjudicated parent, whose parental rights have not

been terminated, whose whereabouts are known, and who is willing

and able to make and carry out day-to-day child care decisions

concerning the minor, unless the parent or parents consent to the

appointment or, after receiving notice of the hearing under Section

11B10.1, fail to object to the appointment at the hearing on the

petition.@ 755 ILCS 5/11B5(b) (West 2004). Moreover, the Probate

Act presumes that a parent is willing and able to carry out day-to-day

child care decisions, and this presumption may be overcome only by

a preponderance of the evidence. 755 ILCS 5/11B5(b) (West 2004).

Thus, a person who petitioned for visitation under the Washington

statute would be given a hearing on merits, and the determination of

the child=s best interests would be made without any deference to the

parents= decision. By contrast, a person who files a petition for

guardianship under the Probate Act will have the petition dismissed if

the child has a parent who is willing and able to carry out day-to-day

child care decisions. State interference with fundamental parental

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childrearing rights is justified in limited instances to protect the

health, safety, and welfare of children. Wickham, 199 Ill. 2d at 317.

By allowing a guardianship petition to proceed to a hearing on the

merits over the wishes of a parent only when the parent has been

established to be unwilling or unable to carry out day-to-day

childcare decisions, the Probate Act respects the superior rights of

parents while also insuring to protect the health, safety, and welfare

of children. We fail to see how the Probate Act suffers the same

infirmity as the statute at issue in Troxel. 3

The second major problem identified by the Supreme Court in

Troxel was the manner in which the statute was applied to a parent

who had not been found unfit. Fit parents are presumed to act in the

best interests of their children, but the trial court in Troxel applied the

opposite presumption. It required a parent to disprove that visitation

with the petitioners was in the child=s best interests. By applying the

3

At oral argument, respondent contended that the problem with the

legislature=s use of the word Aable@ in section 11B5(b) is that Aable@ is

susceptible to more than one meaning. It could mean Apossessed of needed

powers *** or of needed resources *** to accomplish an objective@

(Webster=s Third New International Dictionary 4 (1993)), or it could mean

something more akin to Amarked by intelligence, knowledge, skill, or

competence@ (Webster=s Third New International Dictionary 4 (1993)). We

believe that the legislature clearly meant the former. Applying the latter

definition would raise serious constitutional questions. Moreover, the

legislature placed the term Aable@ after the noun that it modifies, which

generally signifies that the former meaning is intended. See Webster=s Third

New International Dictionary 4 (1993).

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statute in this manner, the trial court Afailed to provide any protection

for Granville=s fundamental constitutional right to make decisions

concerning the rearing of her own daughters.@ Troxel, 530 U.S. at 70,

147 L. Ed. 2d at 59, 120 S. Ct. at 2062.

Such a problem should never arise in a guardianship proceeding

under the Probate Act. Section 11B7 specifically protects the custody

rights of fit parents. The first sentence of this section provides that if

both parents are living, fit, and competent to transact their own

business, they are entitled to custody. The next sentence provides that

if one parent is deceased, then the surviving parent, if fit and

competent to transact his or her own business, is entitled to custody.

Respondent, as R.L.S.=s surviving parent, is thus entitled to custody if

he is a fit person and competent to transact his own business.

Some ambiguity is created by the final sentence of section 11B7.

This sentence provides that, A[i]f the parents live apart, the court for

good reason may award the custody and education of the minor to

either parent or to some other person.@ Respondent is concerned that

this sentence means that, because he was living apart from the mother

when she died, the court may grant guardianship to some other

person simply on a showing of Agood reason,@ and that this sentence

trumps the previous sentence, which would allow him to have

custody if he is fit. It appears that the trial court and the appellate

court also interpreted the statute in this manner. At the beginning of

the hearing, the trial court stated that, Aunder the facts of this case, the

parents here of this minor child lived separate and apart. And under

Section 11B7, if this were to be considered a custodial case as

opposed to a guardianship case, I would have the right to proceed

because they were living apart and make a determination based upon

the evidence for good reason in awarding custody of the child.@ When

describing the protections afforded by section 11B7, the appellate

court stated that ASection 11B7=s requirement that the parent be found

unfit or, if the parents lived apart, that good cause exists to award

custody to some other person provides sufficient protection for

parents= superior right to the custody and control of their children

within the context of proceedings pursuant to the Probate Act.@

(Emphasis added.) 354 Ill. App. 3d at 467.

We disagree with this interpretation. The final sentence of section

11B7 cannot be read in isolation from the previous sentences. See

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Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000) (statutes should be

evaluated as a whole, with each provision construed in connection

with every other provision). We agree with the interpretation given

this section by the appellate court in In re Estate of Brown, 207 Ill.

App. 3d 139 (1990). In rejecting an argument that section 11B7

allowed children to be more easily removed from parents who live

apart, the court interpreted the Agood reason@ in the last sentence as

referring to a finding of unfitness. Brown, 207 Ill. App. 3d at 144.

Petitioners point out that the wording of this final sentence was

necessary to fix a problem of draftsmanship. If the final sentence

merely stated that if the parents live apart, the court may award

custody to either parent, it might be interpreted as meaning that the

court could award custody only to one of the parents. If neither parent

is fit, however, the court obviously has the right to award custody to

some other person. It is implicit in the first two sentences of section

11B7 that the court may award custody to some other person if the

child lacks a fit parent. Further, in a situation in which both parents

are fit and live apart, the court cannot rely on the superior rights

doctrine because both parents start out on equal footing. In re

Custody of Townsend, 86 Ill. 2d 502, 509 (1981). In such a situation,

the court would have to rely on Agood reason@ or the best interests of

the child in determining which parent should be awarded custody.

Thus, as properly construed, section 11B7 provides that fit parents are

entitled to custody. If the child does not have a fit parent, good reason

exists to award the child to a third party. In a situation in which the

parties live apart, the court may award the child to either parent if

both are fit. If neither parent is fit, the court may award custody to

some other person. The Alive apart@ language has no application when

one parent is deceased. Even petitioners concede that it is not the last

sentence of section 11B7 that applies to respondent, but rather the

second (i.e., Aif one parent is dead@).

Although section 11B7 is quite clear that fit parents are entitled to

custody, this court has historically refused to apply the statute as

written. Instead, this court has repeatedly held that, despite the

statute=s pronouncement, a fit parent=s custody rights are subservient

to the best interests of the child. See, e.g., Kirchner, 164 Ill. 2d at

484-85; In re Estate of Whittington, 107 Ill. 2d 169, 177 (1985);

Townsend, 86 Ill. 2d at 508; People ex rel. Edwards v. Livingston, 42

Ill. 2d 201, 209-10 (1969). A typical example of this court=s view of

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section 11B7 can be found in Kirchner. That case reaffirmed the

principle that, in an adoption case, a court cannot consider the best

interests of the child and whether those interests would be best served

by adoption until after the parents are proved to be unfit by clear and

convincing evidence. Kirchner, 164 Ill. 2d at 475-76. The prospective

adoptive parents in Kirchner attempted to rely on Townsend for the

proposition that fitness of the parents is only one factor to consider in

determining the best interests of the child. In rejecting this argument,

this court stated the following:

AAlthough Townsend cites to Giacopelli and further finds

that the father at issue need not be found unfit to award

custody of his child to a third party, it does so pursuant to the

Probate Act of 1975, which is only triggered upon the death

of a parent, a situation we are not confronted with in the

instant case. Unlike the Adoption Act, the Probate Act does

not statutorily mandate a finding of unfitness as a condition

precedent to divesting a parent of custody. (See 755 ILCS

5/11B7 (West 1992); see also People ex rel. Edwards v.

Livingston (1969), 42 Ill. 2d 201 (a probate case deciding

custody based upon the best interests of the child without a

prior finding of unfitness).) The best-interests standard

employed pursuant to the Probate Act in Townsend and

Edwards is thus inapplicable to the case at bar both because

this case does not involve a deceased parent and because

Otto=s cause of action arises out of the Adoption Act, which

mandates a finding of unfitness before parental rights may be

terminated.@ Kirchner, 164 Ill. 2d at 484-85.

There are numerous problems with this passage. First, this court

mistakenly distinguished Townsend on the basis that the Probate Act

is triggered only upon the death of a parent. While it is obviously true

that certain sections of the Probate Act are triggered by the death of a

person, it is not true of the guardianship provisions of the Probate

Act. Neither article XI (755 ILCS 5/11B1 et seq. (West 2004)), which

deals with guardianship of minors, nor article XIa (755 ILCS 5/11aB1

et seq. (West 2004)), which deals with guardianship of disabled

adults, is triggered automatically by the death of a person. Nothing in

article XI limits its application to situations in which one parent is

deceased. The guardianship of minors provisions of the Probate Act

are triggered not upon the death of a parent, as stated in Kirchner, but

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rather upon Athe filing of a petition for the appointment of a guardian@

or on the court=s own motion. 755 ILCS 5/11B5(a) (West 2004). By

its very terms, the Act contemplates guardianship proceedings in

which both parents are living. See 755 ILCS 5/11B7 (West 2004) (AIf

both parents of a minor are living,@ AIf the parents live apart@); 755

ILCS 5/11B8(a)(2)(ii) (West 2004) (AThe petition for appointment of

a guardian *** must state, if known: *** the names and post office

addresses of *** the parents and adult brothers and sisters, if any@).

Indeed, Townsend, the case Kirchner distinguished as being based on

the Probate Act, which was supposedly triggered only upon the death

of a parent, was a case in which both parents were living. In

Townsend, the minor=s mother, who had been the custodial parent,

was convicted of murdering the father=s wife. The father then

attempted to gain custody of his daughter, who had been in the care

of her older sister since her mother=s incarceration. Both parents were

living, and this court decided the case under section 11B7 of the

Probate Act. See also, e.g., Barnhart, 232 Ill. App. 3d 317 (a

guardianship proceeding under the Probate Act, in which both parents

were living).

The second problem with the Kirchner court=s view of the Probate

Act was its assertion that A[u]nlike the Adoption Act, the Probate Act

does not statutorily mandate a finding of unfitness as a condition

precedent to divesting a parent of custody.@ Kirchner, 164 Ill. 2d at

484-85. Two authorities are cited for this proposition. The first is

section 11B7, which says the exact opposite. Section 11B7 clearly

provides that fit parents are entitled to custody. The second authority

cited was Livingston. In that case, this court acknowledged that the

predecessor section to section 11B7 provided that a surviving parent,

if fit, was entitled to the custody of this child. Despite this clear

language, however, this court held that parental fitness was only one

factor for the court to consider and that a fit parent=s rights must yield

to the best interests of the child. Livingston, 42 Ill. 2d at 209-10.

Livingston, however, relied on Giacopelli v. The Florence Crittenton

Home, 16 Ill. 2d 556 (1959), a case that this court overruled and

criticized in Kirchner. Kirchner held that Giacopelli was wrong even

at the time it was decided (Kirchner, 164 Ill. 2d at 483 n.1), was

Aclearly unconstitutional,@ (Kirchner, 164 Ill. 2d at 482), and, by

dispensing with a requirement of unfitness, was Aan unconstitutional

remnant of a bygone era@ (Kirchner, 164 Ill. 2d at 482).

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Not cited by the Kirchner court was section 11B5(b) of the

Probate Act, the amendments to which had been in effect for one year

when Kirchner was decided. As we discussed earlier, section 11B5(b)

now provides that a court lacks jurisdiction to proceed on a

guardianship petition if the minor has a living parent whose

whereabouts are known and who is willing and able to carry out day-

to-day childcare decisions. It is not clear what, if any, difference there

is between section 11B7=s reference to fit parents who are competent

to transact their own business and section 11B5(b)=s reference to

parents who are willing and able to carry out day-to-day childcare

decisions. The legislature might have believed that the amendment to

section 11B5(b) was necessary in light of this court=s interpretation of

section 11B7. Regardless, Kirchner=s conclusion that the Probate Act

does not mandate a finding of unfitness as a condition precedent to

divesting a parent of custody is rendered even more questionable by

the amendment to section 11B5(b).

This court=s cases refusing to apply section 11B7 as written are

wrong and should no longer be followed. Section 11B7 means what it

says: fit parents are entitled to custody. The Probate Act, as properly

construed, protects the due process rights of fit parents and does not

suffer from the same constitutional infirmities as the Washington

statute considered in Troxel.

For the reasons stated, we agree with the holding of the appellate

court that the standing requirement for guardianship petitioners under

the Probate Act is that stated in section 11B5(b). We disagree with the

appellate court only to the extent that it suggested that a fit surviving

parent may be deprived of custody under the Probate Act if he or she

was living apart from the other parent at the time that parent died. We

affirm the judgment of the appellate court and remand this cause to

the circuit court to resolve this case under the proper standards. The

petitioners lack standing to proceed with their petition unless the

court determines that they have rebutted the presumption that

respondent is willing and able to make day-to-day child care

decisions. Moreover, if respondent is a fit person who is competent to

transact his own business, he is entitled to custody of R.L.S.

Appellate court judgment affirmed;

cause remanded.

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