Local couple helped raise son’s kids, but after his death, they can’t get custody

When Kevin Phelps and his wife Mignon divorced in 2004, he got custody of their two little girls. Mignon Phelps, now known as Mignon Biggs, got visitation.

Kevin Phelps, with the girls, soon moved into the home of his parents, Arty and Marjorie Phelps, in the Marine area.

Kevin Phelps died unexpectedly on Dec. 8 at age 43.

There was a “big scene” at the funeral home — a “donnybrook” as one judge wrote — after Biggs tried to talk with Arty and Marjorie about picking up the girls and their belongings. It foreshadowed a court fight that resulted in an appeals court ruling this week that Biggs should get custody, not the grandparents.

Belleville attorney Brad Denney, who represented Arty and Marjorie, said the grandparents essentially helped raise the girls, who were born in 2001 and 2002.

“The children lived with them for the last 12 years,” Denney said. “The grandparents had a close and loving relationship with the children.”

Days after the funeral, Arty and Marjorie filed a petition in Madison County Circuit Court, seeking custody of the grandchildren. Biggs, whose attorney was not immediately available for comment Friday, challenged the petition.

The grandparents argued that Biggs had relinquished custody of the girls.

The grandparents’ other allegations included:

▪  Biggs sometimes didn’t see the girls for almost a month, and never participated in parent-teacher conferences.

▪  Biggs didn’t always give the girls birthday and Christmas gifts.

▪  Biggs often failed to pay child support, forcing Kevin Phelps to go to court. At one point she was about $3,300 in arrears on child support.

Biggs argued that she never relinquished custody to the grandparents. She argued that the grandparents were trying to keep the girls from her.

Biggs testified that she had visits with the girls at least once a week. She testified that she never expressed any disinterest in visiting with her children.

“No, never,” she testified. “Never, ever.”

She also argued that she had financial trouble in the past, but eventually got current on her child support. She noted that she gave her daughters cash for special days at school, helped with their lunch fund and bought them school supplies. Biggs said she always bought gifts for the girls at Christmas and on their birthdays, but didn’t always allow them to bring the gifts to the Phelpses’ home.

Biggs also argued that, since the divorce from Kevin, she had turned her life around: She earned degrees in marketing and management, had a good job, had been married to a new husband for more than seven years, and she was getting ready to buy a new home.

As for time spent with the girls, Biggs noted that she took them on several trips, and that she regularly took advantage of her visitation opportunities. Biggs said she contacted the girls at least every week through phone calls, text messages and Facebook. Biggs said she often helped the girls with homework during their visits.

Madison County Associate Judge Philip Alfeld initially issued a ruling in favor of the Phelpses, entering a temporary order that gave the grandparents physical custody of the children and gave Biggs visitation of two days per week with no overnight stays.

Later, on Feb. 23, Alfeld issued a ruling in favor of Biggs, granting her custody. Alfeld wrote that the custody rights of a natural parent are “superior to the claim of any third party,” including grandparents. Alfeld ruled that the grandparents never had legal custody of the girls and “lack standing to seek custody of their grandchildren.”

The Fifth District Appellate Court in Mount Vernon, in an order issued Tuesday, affirmed Alfeld’s decision to give Biggs custody.

Appellate Justice Bruce Stewart wrote, “The law presumes that a natural parent has a superior right to the care, custody and control of his child, and that it is in the best interest of the child to be raised by natural parents.”

Stewart also wrote that the Phelpses may have had physical possession of the girls for a while after Kevin’s death, but they never had legal custody.

“We agree with the circuit court that the Phelpses failed to prove that Mignon voluntarily and indefinitely relinquished custody of her daughters, and that the Phelpses did not have standing to seek custody of (the girls),” Stewart wrote.

Denney, the attorney for the grandparents, said they wish the Madison County judge would have conducted a private, in-chambers interview of the girls. Denney said he requested that the judge conduct such an interview, but the judge never ruled on the request.

“The grandparents just wanted a chance to be heard and a chance for the girls to talk to the judge,” Denney said.

Justice Stewart wrote that “we cannot determine that the Phelpses were prejudiced” by the judge’s decision not to interview the girls.

Denney said Friday he had not yet fully reviewed the appellate court’s ruling and had not yet talked with the Phelpses about further appeals.

Denney said the Phelpses currently have visitation with the girls, one weekend per month. Arty Phelps is a retiree, while Marjorie Phelps works part-time at a dog-grooming business.

Marjorie Phelps in 2012 was charged with felony financial exploitation of an elderly and disabled person. She was accused of stealing more than $290,000 from a 64-year-old woman who moved in with her in 2003. Marjorie Phelps was placed on probation for two years after pleading guilty to one of the counts, and ordered to pay $165,132 in restitution to the victim.

Kevin Phelps and Biggs married in March 2002. Their divorce was granted in October 2004. Kevin Phelps, a salesman who liked the St. Louis Cardinals and Dallas Cowboys, was awarded custody of the girls. Biggs was awarded visitation two days per week, from 1 p.m. to 5 p.m.

Biggs testified that she and Kevin Phelps cooperated regarding visitation, so she never sought to get her visitation rights formally modified in court.

Grandparent custody and visitation rights are a growing area of family law, as grandparents increasingly are involved in the care and upbringing of children. The Illinois Department of Children and Family Services estimates that in Illinois, more than 100,000 grandparents are caring for their grandchildren on a long-term basis.

Illinois law allows grandparents to seek custody of grandchildren if a parent of the children dies, and one of the follow conditions exists:

▪ The surviving parent has been absent from the marital abode for more than a month without the spouse knowing his or her whereabouts.

▪ The surviving parent is in state or federal custody.

▪ The surviving parent received supervision for or has been convicted of certain crimes directed toward the deceased parent or child, or if the surviving parent received supervision for or has been convicted of violating a protective order that was entered for the protection of the deceased parent or child.

This story was originally published August 5, 2016 at 2:14 PM with the headline "Local couple helped raise son’s kids, but after his death, they can’t get custody."