APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT AFTER REMANDMENT BY THE SUPREME COURT OF THE UNITED STATES:
Plaintiff appealed from a judgment denying her petition to modify a decree which had awarded custody of her two youngest children to defendant.
On June 24, 1970, we rendered an opinion (126 Ill. App.2d 410), reversing the judgment of the trial court on the ground that defendant, the unmarried father of two children, had no right to the society of his children born out of wedlock. The basis of our decision was Section 62 of the Paternity Act (Ill. Rev. Stat. 1967, ch. 106-3/4, par. 62), which provides:
"A person charged or alleged to be the father of a child born out of wedlock, whether or not adjudicated the father under this Act, shall have no right to the custody or control of the child except such custody as may be granted pursuant to an adoption proceeding initiated by him for that purpose."
• 1 On April 17, 1972, the Supreme Court of the United States vacated our judgment and remanded the cause to this court for further consideration in light of Stanley v. Illinois, 405 U.S. 645. Stanley held that the Illinois statutory presumption in a dependency proceeding (see Ill. Rev. Stat. 1967, ch. 37, pars. 702-1 and 702-5), that an unmarried father was not fit to have custody of his children violated the due process and equal protection clauses of the United States Constitution. By its ruling the Supreme Court indicates that in a custody proceeding a father is not barred from obtaining custody of his children born out of wedlock. See also People ex rel. Slawek v. Covenant Children's Home, 52 Ill.2d 20, 284 N.E.2d 291.
In the instant case, the father no longer is to be considered ineligible for custody, there then remains the question as to whether the court's order denying plaintiff's petition for a change of custody of the two minor children was against the manifest weight of the evidence.
The parties were married on October 13, 1954, and on September 9, 1959, plaintiff was granted a divorce. One child, Debra, was born prior to the divorce and custody was awarded to plaintiff. Defendant was ordered to pay $30 per week for Debra's support. On December 21, 1962, the original divorce decree was amended by a finding that plaintiff and defendant had resumed "marital relations" *fn1 after the divorce decree of September 9, 1959; that another child, Jeffery, was born February 26, 1961, 15 months after the entry of the original divorce decree; that plaintiff was pregnant with child by defendant; and that defendant admitted the paternity of Jeffery and the child in esse. The court found that defendant was their father and ordered him to pay plaintiff $35 per week for their support. Plaintiff and defendant separated some time in 1962.
Another amended order was subsequently entered on February 27, 1963, indicating that the third child, Randy, was born January 2, 1963, and that defendant was his father.
During 1963 and 1964 defendant was in arrears in his support payments and on October 1, 1965, there was an order settling defendant's child support arrearage at $350 and giving defendant visitation rights with the children.
On July 25, 1966, plaintiff wrote defendant a letter stating in relevant part:
"During the weeks that the children have been with you, [the defendant] I have spent a lot of time thinking of them their welfare, happiness and future. While they have been with you, they seem happy and, as a matter of fact, do not seem to be homesick at all, nor are they anxious to come back.
With you, they have a family life, a mother, (though a stepmother) father, sisters and brothers, and other children to play with in a small town, away from the dangers of a large city. They can even have pets. Here they have little. I cannot turn the boys free on the streets of Chicago. Therefore, they do not go out as much as they should.
I don't get home from work until about six o'clock and shortly after we have our dinner, the children have to go to bed, so they really don't even have me very much. This is no life for them. They really have no one all day, because the best of babysitters is still just a babysitter and not a mother. Living with me, they don't have a father either, except for a few weeks.
It is going to be terrible for me to be without them, but I have made up my mind that they will be better off all the way around with you, so I ...