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Jacobs v. Jacobs

DECEMBER 13, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. DAVID LINN, Judge, presiding.


This is an appeal from an order modifying a decree of divorce.

Plaintiff and defendant were married in New York in 1963 in a Jewish religious ceremony. One child, Jennifer, was born to them of this marriage. In December, 1969, plaintiff petitioned for and was awarded a divorce in the Circuit Court of Cook County. That decree awarded the sole care, custody, control and education of the minor child Jennifer, then 4 years of age, to plaintiff mother. Prior to the divorce, both plaintiff and defendant were of the Jewish religion. However, neither party actively practiced their faith during the marriage.

After the divorce, each of the parties remarried. Defendant married a Protestant woman who converted to Judaism. Plaintiff married a Mr. Gerhardt, of the Catholic faith, and converted to Catholicism. Plaintiff subsequently had several other children, all of whom are baptized and raised in the Catholic faith. She now lives in New York, where Mr. Gerhardt is employed, while defendant remains in Illinois.

In November, 1971, defendant petitioned to amend the decree of divorce and award custody of Jennifer to himself. It appears that since his remarriage he had become extremely devout and orthodox in his practice of the Jewish religion. His petition alleged, in essence, that Jennifer was receiving instruction in the Catholic faith, was being forced to participate in Catholic services, and that said conduct was detrimental to the proper care, well-being and education of the minor child. For these reasons, the father contended plaintiff was unfit to have custody and prayed that custody be awarded him.

The court directed a psychiatric examination of defendant, plaintiff and Jennifer. In his letter to the court following the interviews, the examiner reported:

"Whereas Mrs. Gerhardt appears to sincerely feel that a change to Catholicism would be for Jennifer's benefit in terms of her feeling more a part of the family, Mr. Jacobs' desire is much more predicated on an unconscious selfish motivation."

The examiner goes on to state that he feels the issue is "not significant" to the child but that "Mrs. Gerhardt would be more accepting of Jennifer being raised Jewish than Mr. Jacobs would be of Jennifer being raised Catholic." He accordingly advised the court to allow the child to attend Catholic services with her mother and stepfather but also to attend Hebrew school in New York. Following the psychiatrist's recommendation, the court denied the change of custody but did order that Jennifer "be raised in the Jewish Religion until her adolescence at which time she may have the right to choose her own religious persuasion or until further order of this Court." It was further ordered that she "be exposed to Jewish Religious training in a Hebrew school in the area and vicinity of her home," but that nothing shall preclude her from "attending religious services in the Catholic Church with her mother, stepfather and step brothers and/or step sisters." The mother brings this appeal from that order.


• 1-3 It is well settled in Illinois that a decree for divorce cannot be modified or amended unless there has been a material change of circumstances since the entry thereof. (Taylor v. Taylor, 32 Ill. App.2d 45, 48, 176 N.E.2d 640; Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535; Wade v. Wade, 345 Ill. App. 170, 102 N.E.2d 356.) A decree fixing the education of children is final and res judicata and should not be altered or amended unless new facts have arisen since the entry of the decree which make it necessary, in the best interests of the child, that the decree be changed. (Taylor v. Taylor, supra, at 48; Wade v. Wade, supra.) In a post-decree hearing to modify the child-custody provisions of a decree, the party seeking the modification has the burden of proving altered conditions. (Eggemeyer v. Eggemeyer, 86 Ill. App.2d 224, 230, 229 N.E.2d 144; Hirth v. Hirth, 59 Ill. App.2d 240, 207 N.E.2d 114.) Every presumption is indulged in favor of the validity of the decree, and if its provisions are to be changed, the burden of proof is on the moving party to show why the change should be made. Eggemeyer v. Eggemeyer, supra, at 230; Hirth v. Hirth, supra, at 243.

• 4 In all matters concerning the custody of children, the paramount issue is their welfare. The fact of changed conditions, in itself, is not sufficient to warrant modification of the custody provisions of the decree, unless such changed conditions affect the welfare of the child or children. (Eggemeyer v. Eggemeyer, supra, at 231; Hirth v. Hirth, supra, at 244.) As stated in Dunning v. Dunning, 14 Ill. App.2d 242, 246, 144 N.E.2d 535, and reaffirmed in Taylor v. Taylor, supra, at 48: "`* * * "The changing circumstances must be, obviously, those that affect the children, — not those that concern the parents."'"

Here, the original divorce decree gave Jennifer's mother the sole responsibility for the care, custody, control and education of the child. The right to control the education of the child includes all facets and dimensions of that term. (Cf. People ex rel. Burr v. Fahey, 230 Ill. App. 143, 153-4.) Yet, defendant here petitioned the court to modify that decree and order that the child receive education in a Hebrew school. In oral argument here, in support of the trial court's order regarding the child's attendance in Hebrew school in New York, defendant's attorney stated:

"Obviously, if the Hebrew School is there, then in that community there is the opportunity for the child to receive the Jewish education. Judaism, basically, as was brought out in the trial court, is a religion which is education centered, and that's why the issue of the child's education seems to become important."

• 5 Custody may, and frequently does, embrace provisions for religious training, and a modification of a custody order of this kind is governed by the same rule requiring a material change of circumstances. (Gottlieb v. Gottlieb, 31 Ill. App.2d 120, 175 N.E.2d 619.) To justify such a modification of the original decree here, it was incumbent upon the father to show some change in circumstances affecting the welfare of the child. The psychiatric report indicated that (1) the issue of religious education was "not significant" to the child; and (2) whether or not Jennifer received instruction in the Jewish religion would have no significant effect upon her. However, the psychiatrist felt the mother could adjust more easily to the child being raised Jewish than the father could adjust to the child being raised Catholic, and as a result he felt that instruction in the Jewish faith would improve the child's relationship ...

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