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Chodzko v. Chodzko





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


Rehearing denied January 26, 1976.

A decree of divorce was entered on June 22, 1965, in favor of the plaintiff-respondent-appellant herein, hereinafter referred to as respondent. The decree provided that the custody, education and control of the four minor children be awarded to the mother, the plaintiff-respondent.

The maternal grandfather, John C. Setecka, since the entry of the decree, had for more than six years visited with said grandchildren with plaintiff's consent on an average of once a week as well as on birthdays and other special occasions. He had taken them to various sporting events and on vacations each year and overnight automobile trips out of the city. On January 25, 1972, plaintiff advised the grandfather that he could no longer see the grandchildren without expressing any reason therefor.

On May 24, 1972, said John Setecka presented a petition to intervene, seeking an order on the respondent to permit him to visit with and take out said minor grandchildren without any interference with respondent's custodial right of said children. The respondent filed a motion seeking denial of leave to file said petition on the ground that petitioner had no legal standing to intervene and had not pleaded sufficient facts entitling him to the relief sought. The trial court, after a hearing, overruled the motion and allowed petitioner to intervene.

On June 27, 1972, respondent filed an answer alleging in substance that petitioner's visitations have been injurious to her and the children and have interfered with her raising the children and disturbed the tranquility of her home and asked that the petition be dismissed and that an injunction be issued restraining petitioner from "harassing, annoying or bothering respondent or her children or otherwise interfering with the tranquility of her home."

The father of the children advised the trial judge that he was desirous of having the children visit with their grandfather; that said visitations take place on a Sunday when the father had visitation rights; and that he would pick up the children at their mother's home, take them to the grandfather and return them to their mother at the agreed time in the evening.

On September 27, 1972, the following agreed order was entered by the trial court:

"That parties shall continue to exercise the voluntary one Sunday per month visitation with petitioner as had been exercised since the last hearing, the same being exercised and allowed, without prejudice to parties' respective positions."

On December 6, 1972, the trial court entered the following order:

"It is hereby ordered that the grandfather of the minor children be permitted until further order of the court to visit with said minor children one Sunday each month in the same manner as such visitation has existed since June 27, 1972, by the parties and without prejudice."

On July 30, 1973, respondent moved to vacate the court's said order of December 6, 1972, alleging that petitioner had sole custody of the minor children. This motion came up for hearing on November 16, 1973. The trial court denied the respondent's motion to vacate the order of December 6, 1972.

Plaintiff-appellant claims on appeal that the trial court erred in allowing petitioner to intervene and in granting him visitation rights in the absence of allegations in his petition and proof that respondent was an unfit parent and that other special circumstances exist warranting such relief.

We agree with the intervening petitioner that the law distinguishes between custody and visitation. The court has jurisdiction to determine visitation rights without a showing that a parent is unfit or that other special, extenuating circumstances exist. A parent has a paramount right to custody of minor children. The plaintiff-respondent-appellant in this appeal refers to section 132 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 132). This section provides that "the court for good reason may award the custody and education of ...

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