APPEAL from the Circuit Court of Cook County; the Hon. FRED W.
SLATER and NORMAN N. EIGER, Judges, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT: This is an appeal from an order granting a father permanent custody of his minor children.
Jeanette Filipello and Michael Filipello were divorced in 1962. Custody of their two children, Regina, age seven, and Michael, Jr., age four, was awarded to the mother. In October 1965 Filipello, who had remarried in 1964, filed a petition for custody. He alleged that his former wife had been arrested for conspiracy to commit murder and was morally unfit to bring up the children.
Attached to his petition were four newspaper articles which supported his charge. According to these articles, the former Mrs. Filipello had employed a man to kill the wife of her lover. Using a key furnished by Mrs. Filipello, her fellow conspirator entered the woman's home with the intention of strangling her, but lost his nerve and fled. The woman ran from her house and obtained the license number of his departing auto and he was arrested. Both he and Mrs. Filipello confessed and the sordid details were revealed. For two years she and the woman's husband had carried on an illicit relationship and during this period he moved in and out of the home occupied by her and the Filipello children. In an attempt to bring about a divorce, she anonymously communicated details of the love affair to her lover's wife. Despairing of success, she determined to murder the woman and induced a fellow-employee to kill her by promising to give him $1,500.00.
Filipello's petition was granted and the children resided with him until June 1967.
In October 1966 Mrs. Filipello petitioned for re-instatement of the original order of custody. The petition was continued from time to time and in June 1967 she filed an emergency motion for immediate custody. The motion alleged that there had been a change in circumstances since the entry of the order placing the children with their father; that she had remarried and was able to provide the children with a better home; that the children had developed hostility toward their father and his new wife, had been physically abused by them and had run away to the home of an aunt. Filipello's answer denied that changed circumstances justified a change in custody. He stated that if there was any hostility toward him on the part of the children it was engenedered by their mother.
A hearing was had and an order entered which, without prejudice to the rights of either party, placed the children with the aunt until the further order of the court. Each parent was given visitation rights and the custody of the children on alternate week-ends. The children, although continuing to go to the same school they had attended while living with their father in Berwyn, resided with their aunt at her home in Oak Lawn until November 1967, when the order was entered from which this appeal was taken.
By the time the hearing to determine permanent custody was held in November 1967, two investigations of the parents' homes and circumstances had been conducted by the Court Service Division of the Department of Public Aid, and two petitions for custody were before the court: The mother's, filed in October 1966, and the aunt's, filed in September 1967, after leave to intervene had been allowed.
The aunt submitted no evidence; her attorney, however, argued in her behalf. In support of her petition the mother testified herself and presented the testimony of her new husband, the Filipello children, four policemen, a psychiatrist and a neighbor. The mother testified that she had remarried in May 1967 and lived with her husband and his two daughters by a previous marriage in a ten-room home in Arlington Heights. She said she loved her children and would be able to provide them a good home. Her husband stated that she took good care of his ten and four-year-old daughters and that they and the Filipello children played together and did not quarrel.
Regina Filipello, who was twelve years of age at the time she testified, said she would like to live with her mother but if she could not she preferred to stay with her aunt. She told of two incidents that had taken place while she and her brother lived with their father. The first incident concerned herself. She related a conversation with her father about having her ears pierced for earrings. It appears that she had requested that this be done and her father arranged an appointment for her with a doctor but she changed her mind because her mother disapproved. Her father spoke about the mother's power over her and said if her ears were pierced the power would be gone. The second incident concerned her brother. On a day in February 1967, Michael had been instructed by his stepmother to clean his room. He protested that he would be late for school. She insisted that he pick up the room and he did so, but as he left the house he said to her, "I wish you were dead." When he returned from school she punished him by striking him on the buttocks with a belt. She warned him not to tell his father. However, the following weekend, when they were visiting their mother [who was residing in the Forest Park home of the man she later married], he told her about it. The mother telephoned the father who knew nothing about the punishment. After their mother had done this, Regina said she and her brother were afraid to go back to their father's home. The mother called the Forest Park Police Department and an officer came to the house. He was shown Michael's bruises and he took the children to the Forest Park station and then to the Berwyn police station. From there, at their request, they were taken to the juvenile home where they stayed for three days.
Two police officers, one from Forest Park and the other from Berwyn, testified about the last incident. They saw the bruises on the boy and were told who inflicted them. The first officer testified that the children said their father was cruel, that they did not love him or want to live with him. The second officer said that the father came to the Berwyn station that evening about 9:30 P.M. to complain that the children had not been returned to him. He was there when the children and the mother arrived with the Forest Park policeman. After lengthy discussions with all concerned, the officer gave the children the choice of going home with their father or of being taken to the Audy Juvenile Home. They pleaded for permission to go with their mother. The officer refused and the children asked, amidst tears, to be taken to the Audy home.
Michael, nine years old and in third grade, testified that his father picked him up each morning at his aunt's home in Oak Lawn and drove him to school in Berwyn, and that each afternoon either his father or stepmother came for him after school and returned him to his aunt's home. He told of a dispute between his parents in June 1967 while he was living with his father. The dispute arose over his mother's taking him home from Little League baseball games in which he played; his father also took him home after these games and objected to the mother's doing so. He said his father kicked his mother's car and tried to punch her. He ran away from home, he said, because he thought his father would forbid him to play baseball.
A third policeman supplied further details. In response to the mother's telephone call he went to her home. The boy was there and she asked that he be taken back to his father. The boy told the officer about his mother driving him home from baseball games and that his angry father locked him in his room; he became frightened and rode his bicycle to his mother's house. The officer drove the boy home and the mother rode with them. She remained in the car when he took the boy to the front door. The father told the boy to get into the house. The boy complied, reluctantly. His sister came to the door, saw her mother and waved to her. The father told her to go inside. As she did so she started crying.
A fourth policeman told about another occasion when the mother enlisted police assistance. She and her husband brought the Filipello children to the Forest Park station on a Saturday night in June 1967. She said they were returning the children to their father and asked that a policeman accompany them.
A psychiatrist examined the children a week before they appeared in court. He stated that the children got along well with their mother but not with their father; that they took her side and did not care to remain with him. From his observation and interrogation he concluded that neither child was emotionally disturbed. An objection was made and sustained to the question when he ...