More recently, this court unanimously rejected the use of summary judgment procedure to restore a natural parent's custody rights when the child had been in the care of another for years. ( In re Estate of Whittington (1985), 107 Ill.2d 169.) In Whittington, the legal guardian of a young boy was the child's great aunt.
The court criticized previous cases for failing to apply section 11-7 as written. In re R.L.S., 218 Ill. 2d at 444, 844 N.E.2d at 32, citing In re Petition of Kirchner, 164 Ill. 2d 468, 484-85, 649 N.E.2d 324, 332 (1995) ( Kirchner); In re Estate of Whittington, 107 Ill. 2d 169, 177, 483 N.E.2d 210, 215 (1985); In re Custody of Townsend, 86 Ill. 2d at 508, 427 N.E.2d at 1234; and People ex rel. Edwards v. Livingston, 42 Ill. 2d 201, 209-10, 247 N.E.2d 417, 422 (1969).
"Pursuant to section 2-1005 of the Code of Civil Procedure, any party 'may move with or without supporting affidavits for a summary judgment in his or her favor for all or any part of the relief sought' against him or her. (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1005(a), (b).) Although the use of a summary judgment procedure is encouraged as an aid in expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. [Citation.] 'In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.' ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177[, 483 N.E.2d 210, 215]; Tersavich v. First National Bank Trust [Co.] (1991), 143 Ill.2d 74, 80-81[, 571 N.E.2d 733].)" Loyola Academy v. SS Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 271-72, 586 N.E.2d 1211, 1214-15. Where, as here, plaintiffs appeal from the trial court's grant of summary judgment to defendants, the only issue before the court on review is whether all the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. ( Lindenmier v. City of Rockford (1987), 156 Ill. App.3d 76, 508 N.E.2d 1201.)
The Illinois Supreme Court recently wrote the following regarding summary judgment: "Although the use of a summary judgment procedure is encouraged as an aid in expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free of doubt. [Citation.] `In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.' ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177[, 483 N.E.2d 210, 215]; [see also] Tersavich v. First National Bank Trust (1991), 143 Ill.2d 74, 80-81[, 571 N.E.2d 733, 735-36].)" Loyola Academy v. S S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 271-72, 586 N.E.2d 1211, 1215.
( Addison v. Whittenberg (1988), 124 Ill.2d 287, 294.) Summary judgment is proper when, construing the evidence in the record strongly against the movant and liberally in favor of the opponent ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177; Dockery v. Ortiz (1989), 185 Ill. App.3d 296, 304-05), the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c); Vuletich v. United States Steel Corp. (1987), 117 Ill.2d 417, 421; Hagy v. McHenryCounty Conservation District (1989), 190 Ill. App.3d 833, 842). To prevent entry of summary judgment, an opponent must present a bona fide factual issue and not merely general denials and conclusions of law. ( Wil-Shore Motor Sales, Inc. v. Continental Illinois National Bank Trust Co. (1984), 130 Ill. App.3d 167, 172.)
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, 208 Ill.Dec. 268, 649 N.E.2d 324; In re Estate of Whittington, 107 Ill.2d 169, 177, 90 Ill.Dec. 892, 483 N.E.2d 210 (1985); Townsend, 86 Ill.2d at 508, 56 Ill.Dec. 685, 427 N.E.2d 1231; People ex rel. Edwards v. Livingston, 42 Ill.2d 201, 209-10, 247 N.E.2d 417 (1969). A typical example of this court's view of section 11-7 can be found in Kirchner.
"In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent." ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177; Tersavich v. First National Bank Trust (1991), 143 Ill.2d 74, 80-81.) In short, "[a] motion for summary judgment is to be decided on the basis of the record as it exists at the time the motion is heard."
(Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) The pleadings, depositions, admissions, and affidavits on file must be construed against the movant and in favor of the opponent ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177), but the opponent of the motion cannot rely simply on his complaint or answer to raise an issue of fact when the movant "supplies facts which, if not contradicted, would entitle such a party to a judgment as a matter of law" ( Carruthers v. B.C. Christopher Co. (1974), 57 Ill.2d 376, 380). An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill.2d 19, 31.
A motion for summary judgment and its supporting documents must be construed strictly against the movant and liberally in favor of the opponent. ( In re Estate of Whittington (1985), 107 Ill.2d 169, 177; Williamsv. Alfred N. Koplin Co. (1983), 114 Ill. App.3d 482, 485; Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App.3d 981.
" ( In re Custody of Townsend (1981), 86 Ill.2d 502, 508. See also In re Estate of Whittington (1985), 107 Ill.2d 169, 177.) This superior right of the natural parent is recognized and embodied in our statutory law.