# Stevenson v. Hawthorne Elementary School

> Appellate Court of Illinois · July 23, 1990 · 200 Ill. App. 3d 991

URL: https://www.frixlaw.com/law-library/cases/7024022

## Case

- **Full name:** TAMEKA STEVENSON, a Minor, by her Guardian, Magna Bank v. HAWTHORNE ELEMENTARY SCHOOL, (Louella D. Stevenson, Indiv. and as Mother and Next Friend of Tameka Stevenson, a Minor, Intervenor-Appellant)
- **Court:** Appellate Court of Illinois
- **Decided:** July 23, 1990
- **Citations:** 200 Ill. App. 3d 991; 146 Ill. Dec. 610; 558 N.E.2d 573; 1990 Ill. App. LEXIS 1117
- **Precedential status:** Published
- **Opinion:** Dissent by Howerton
- **Judges:** Harrison, Howerton
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Stevenson v. Hawthorne Elementary School, 144 Ill. 2d 294 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7024022

## Opinion text

JUSTICE HOWERTON dissenting:
I cannot join this decision, because, I believe, it is marked with a twofold defect.
First, this decision restricts the plenary authority of the custodial parent granted to her by a circuit court pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 608(a)).
Second, it rewards the winner of a race to the courthouse with a preference and penalizes the loser: The preference granted to the winner is freedom from the burden of persuasion; the penalty assessed to the loser is not being able to act as next friend, unless the burden of persuasion has been undertaken and met.
I
The question of who is to initiate a lawsuit for a child, a parent who has custody or a noncustodial parent, should not be determined under the Probate Act (Ill. Rev. Stat. 1987, ch. llOVa, par. 11 — 5), but rather should be determined under section 608(a) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1987, ch. 40, par. 608(a).
Section 608(a) of the Illinois Marriage and Dissolution of Marriage Act grants full authority to the custodial parent to determine the child’s upbringing. Usage here of the term “full” to describe the boundaries of the custodial parent’s authority is fair, because the Act grants authority to the custodial parent and places limitations on that authority only on motion of the noncustodial parent and hearing by the court. Plenary, a term most apt in the circumstances of this case, is an acceptable substitute for the term “full.”
Section 608(a) provides:
“Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian’s authority would clearly be contrary to the best interests of the child.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 608(a).
In contrast, guardianship proceedings brought under the Probate Act determine whether it is in the best interests of a child to appoint someone to have authority over the child or his estate.
In this case, the mother already had authority over the child; she had been awarded custody.
The issue here, therefore, is not that addressed by the majority, namely: whether someone should be appointed Tameka’s guardian; rather, the issue is whether imposing limitations on the authority of her mother is in Tameka’s best interests.
There are no Illinois cases on this issue; however, I believe included within the language of section 608(a), “determine the upbringing of the child,” is the implicit authority which gives the custodial parent the right to initiate litigation on behalf of the child. See Montoya v. Bebensee (Col. 1988), 761 P.2d 285 ; Rhoades v. Rhoades (1975), 188 Colo. 423 , 535 P.2d 1122 .
This implicit authority is found by the conferral of substantial authority upon the custodial parent by the statute (Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 55 (Smith-Hurd Supp. 1990); Dymek v. Nyquist (1984), 128 Ill. App. 3d 859 , 469 N.E.2d 659 ), and also from the fact that the statute is designed to promote privacy and to prevent the noncustodial parent from intruding upon the prerogatives of the custodial parent. See Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 81 (Smith-Hurd 1980).
This design serves the best interests of the child by shielding the custodial parent from harassment by the noncustodial parent. So, too, the statute augments the finality of custody judgments without jeopardizing the child’s welfare. See Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 81 (Smith-Hurd 1980).
Section 608(a) of the Marriage and Dissolution of Marriage Act, in contrast to section 11 — 5 of the Probate Act, focuses on the full, plenary authority of a custodial parent and allows a limitation on that authority only when it is clearly in the best interests of the child. The sweep is broader, for here, more is encompassed than a child’s estate, a child’s rights; instead, encompassed is the full panoply of childhood itself. The goal is that a healthy adult will molt from childhood. The path selected is one of discouraging interferences on the part of the noncustodial parent so as to foster stability and peace for the child. Section 608(a) announces a policy of reluctance to upset the equilibrium that has been struck by a judgment awarding custody.
A custodial parent, I would hold, has plenary authority over a child, that should include the right to initiate legal action.
A custodial parent, therefore, should have the exclusive right to bring a lawsuit as next friend for the child unless: (1) the custodial parent agrees that the noncustodial parent should bring the lawsuit as next friend; or (2) the noncustodial parent shows to a court in an evidentiary hearing that it is in the best interests of the child that the noncustodial parent bring the lawsuit.
II
If a court proceeds under the Probate Act, then the question of who bears the burden of persuasion depends on a “race to the courthouse.”
The parent who files first bears no burden of persuasion. Instead, the parent who objects and who seeks to displace the other as next friend bears the burden of proving that it is in the best interests of the child that she proceed. Thus, if the custodial parent has lost the race to the courthouse, she will bear the burden of persuading the court that it is in best interests of the child that she act as next friend, notwithstanding that another court already has found it in the best interests of the child that she be given the plenary authority to determine the child’s upbringing. Under the rule announced by the majority, the noncustodial parent will win when the evidence is evenly balanced, a win predicated on winning the race to the courthouse.
This is tilted. It is tilted away from the intent of the Illinois Marriage and Dissolution of Marriage Act. I do not believe the legislature intended this result.
On the other hand, if the court were to choose to proceed under the Illinois Marriage and Dissolution of Marriage Act, then the burden of persuasion always would be on the noncustodial parent, for that act, in effect, says that the custodian may determine the child’s upbringing, unless the court finds on motion by the noncustodial parent that it would be in the best interests of the child to place a limitation on the custodian’s authority. Thus, if this procedure were adopted, when a court was faced with a choice, the noncustodial parent would bear the burden and the custodial parent would get the benefit. The custodial parent would win when the evidence is evenly balanced, a sort of preference to which the parent who already has been given custody by a court justifiably is entitled.
This, too, is tilted, but in the direction of harmony, stability and towards the intent of the Illinois Marriage and Dissolution of Marriage Act.
Either the custodial parent must get this preference, this benefit of bearing no burden and winning all cases where the evidence is evenly balanced, or the party who files first must get it. The scales must be tilted in favor of one or the other. There is no alternative. Just as a circuit court must choose, so must we.
It does not seem to me to be an answer to the fact that we are called on to tilt the scale one way or the other to say, as does the majority, that
“what is at issue *** is not the prerogatives of the custodial parent, but the best interests of the child. [And,] [t]hrough the Probate Act [citation], the legislature has established a system for insuring *** the best interests of the child ***. [And,] [i]f that system is flawed, that is something for the legislature and not this court to correct.” 200 Ill. App. 3d at 996.
This is no answer, because both the Probate Act and the Illinois Marriage and Dissolution of Marriage Act are law; both look like they apply; both are to be read in pari materia; we must decide this case presented to us, which necessarily and unavoidably forces us to choose one approach or the other; to say “let the legislature fix it” just diverts attention from the fact that we have opted for the Probate Act over the Illinois Marriage and Dissolution of Marriage Act, and placed upon the custodial parent the burden of persuading a court that the best interests of the child require her to act as next friend, even though another court has said the best interests of the child require her to have custody, to have plenary authority over the child.
Lastly, I think the type of hearing that was held here was insufficient, because no evidence was taken. I would hold that a full evidentiary hearing should be afforded before a court can determine the best interests of a child.
I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7024022. Public record. Not legal advice.