¶1specially concurring:
¶2I agree with Justice Miller’s dissent in Kirchner (164 Ill. 2d at 502-09, 649 N.E.2d at 340-43). A standing requirement is useful as a rough filter to prevent the filing of cases by those who have no legitimate interest in the care of the child, but is poorly suited to resolving real disputes between those who have such an interest. A standing requirement is unnecessary to protect the natural rights of the parent. Even where the court decides the case under the best-interest-of-the-child standard, the court will still give considerable weight to the right of the natural parent. The worst consequence of finding standing is that the court will hear evidence before deciding the case. Nevertheless, the majority opinion in Kirchner is binding upon us.
¶3There is some justification for treating nonparents who wish to intervene in an existing case differently, for purposes of standing, than those who wish to file an original action. Section 601(b) of the Marriage Act provides that it applies when a child custody proceeding is "commenced.” 750 ILCS 5/601(b) (West 1992). Section 601(c) provides that "[t]he court, upon showing of good cause, may permit intervention of other interested parties.” 750 ILCS 5/601(c) (West 1992). The comments to the section of the uniform act on which section 601 is based state:
"Once a custody proceeding is commenced, the court should be able to hear the views of all interested persons; [section 601(c) of the Marriage Act] therefore authorizes the judge to permit intervention by relatives who would not have been allowed to commence an action.” Uniform Marriage and Divorce Act § 401, Comment, at 550-51, 9A U.L.A. (1987).
¶4The cases, however, have not recognized that distinction. See, e.g., In re Marriage of Nicholas, 170 Ill. App. 3d 171, 176, 524 N.E.2d 728, 731 (1988).
¶5dissenting:
¶6I respectfully dissent. The majority believes the Kirchner decision is controlling (164 Ill. 2d 468, 649 N.E.2d 324). I disagree. Kirchner involved an invalid adoption and allegations the adoptive parents deceived the biological father. The case before us involves a parentage proceeding and the request of F.Y.’s present caregivers to intervene in that proceeding. The majority emphasizes the similarity between this case and Kirchner. Yet, in this case, the child’s mother voluntarily transferred F.Y. to the respondents, consented to the adoption of the child, and respondents promptly served notice on Brumfield of the adoption proceeding.
¶7Justice Miller’s dissent in Kirchner (164 Ill. 2d at 505, 649 N.E.2d at 341) makes several excellent points which, by analogy, are applicable in the case before us. Brumfield was not declared the biological father of F.Y. until after the child’s mother voluntarily relinquished her parental rights and lawfully placed the child with a family she believed would give her daughter the care and love she deserved. The respondents filed an adoption petition and gave notice to the putative father. The Gingers were lawful custodians of F.Y. at that point. Brumfield had not yet been declared to be the child’s father. He had not yet exercised custodial rights. Brief visits and the previous filing of a parentage petition did not give him the immediate and exclusive custody of F.Y. when Yard executed an irrevocable consent for adoption.
¶8As noted by Justice Cook in his special concurrence, standing is a rough filter to screen out individuals who have no lawful or legitimate interest in a child. By what stretch of law, logic, fact or policy can it be said the Gingers do not have a sincere, legitimate and lawful interest in the welfare and custody of F.Y.?
¶9The voluntary relinquishment requirement which has been en-grafted by judicial decisions to section 601(b)(2) of the Marriage Act is not applicable here because Brumfield never had physical custody of F.Y. to relinquish. "The requirement of a voluntary relinquishment of the child by his or her biological parents is intended to discourage child abductions and other illicit self-help measures that would otherwise grant a third party standing pursuant to the literal terms of section 601(b)(2).” Kirchner, 164 Ill. 2d at 505, 649 N.E.2d at 341 (Miller, J., dissenting). The Gingers did not wrest control of F.Y. from Brumfield nor did Brumfield relinquish to them what he did not have. Brumfield had nothing to relinquish, and the Gingers have acted in good faith. The Gingers are not members of a roving band of child snatchers. They are not grasping relatives who seek to manage F.Y.’s estate. They did not abduct her. They did not engage in deceitful measures to prevent Brumfield from knowing they sought to adopt her. They have lawfully cared for and nurtured F.Y. since she was six months old and no reason exists to use an artificial and narrow interpretation of standing to prevent them from participating in the parentage proceeding and seeking custody of F.Y. They have standing — not because of "mere possession,” but because of their good-faith conduct and their lawful exercise of authority and control over F.Y.’s welfare for almost l1/2 years before the trial court concluded it was required to deny their intervention.
¶10Just as physical custody requires more than mere possession, so too does custody require more than mere biology. Fatherhood requires more than biology. Nurturing caregivers who are lawfully exercising control over a child cannot be dismissed as interlopers who have no interest in the future welfare of the child. "[Bjiological relationships are not exclusive determination of the existence of a family.” Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 843, 53 L. Ed. 2d 14, 34, 97 S. Ct. 2094, 2109 (1977).
¶11Justice Cook in his special concurrence also notes the Uniform Marriage and Divorce Act, on which section 601(b)(2) is based, provides that relatives who would not have been permitted to commence a custody proceeding may nonetheless be permitted to intervene in an existing case. The wisdom of such an approach is contained in the true balance it achieves. Persons who have a prior relationship with a child and who have a legitimate interest in the child’s welfare may be permitted to intervene, but a presumption in favor of the biological parent’s claim will remain. This has the advantage of addressing both the child’s welfare and the parent’s interests instead of using a narrow view of standing to defeat a meaningful examination of the child’s best interest.
¶12The child’s best interest controls when a custody dispute arises between natural parents. Yet, when such a dispute arises between a parent and a nonparent, we use a narrow interpretation of the standing requirement coupled with the superior right of a parent to the care and control of a child to prevent any inquiry into the child’s welfare. In the face of the assertion a parent has a constitutional right to the custody of his child, perhaps we should ask why this right is superior to the child’s interest in having the court carefully examine what is in the child’s best interest. Why are they not equal claims? I am confident a more flexible approach to standing will not result in a plethora of neighbors and distant relatives snatching children from their parents and attempting to assert legal rights to their custody. I am also confident the trial courts can readily determine those persons who have a legitimate interest in the welfare of a child and permit them to participate in custody proceedings while at the same time giving appropriate deference to the parents’ interests. Such an approach will not promote abductions or unilateral removals of children from their parents by interlopers or the state. It will promote the best interests of children.
¶13The narrow application of standing in a case of this sort, while not intentional, unfortunately gives support to the notion that a child is the property of his parent. Melanie Sloan, in a thoughtful and provocative analysis of the infamous Baby Jessica case (In re Baby Girl Clausen, 442 Mich. 640, 502 N.W.2d 649 (1993)), the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A (1988) (Prevention Act)), and other cases, posits that a child’s right to live in a secure and loving environment is sometimes unfortunately subordinated to a parent’s ownership interest in the child. M. Sloan, No More Baby Jessicas: Proposed Revisions to the Parental Kidnapping Prevention Act, 12 Yale L. & Pol’y Rev. 355 (1994) (hereinafter Sloan). The parental rights doctrine ultimately treats the child as a parent’s property. That article proposes changes in the Prevention Act which parallel the concerns raised by Justice Miller in the Kirchner dissent and the approach taken by the Illinois legislature in the 1994 amendment adding section 20b to the Adoption Act (750 ILCS 50/20b (West 1994)). Best interest hearings may well be necessary before removing a child from the custody of adoptive parents and returning the child to biological parents.
¶14Because parenthood is a social, psychological, and intentional status as much as it is a biological one, courts should have a flexible interpretation of standing to permit those who have social and psychological ties to a child and who have chosen to accept the responsibility of parenting, and actively intend to meet that responsibility, to participate in court proceedings to determine custody. Sloan at 375. This approach places as much value on the child’s welfare as it does on the parent’s interests. Requiring a heretofore absent parent to articulate his claim to his daughter based on her welfare, rather than his own, expresses a genuine interest in the child as a person rather than a possession. See Sloan at 382. It also strikes a balance that cannot be achieved when the most significant people in the child’s life are stopped at the courtroom door by a rule that serves the best interests of no one.