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People Ex Rel. Irby v. Dubois

OPINION FILED AUGUST 13, 1976.

THE PEOPLE EX REL. BARBARA IRBY, PETITIONER-APPELLANT,

v.

EDMUND DUBOIS, A/K/A EDWARD TERRELL, RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Petitioner *fn1 appeals from a judgment denying her petition for a writ of habeas corpus and awarding custody of her twin daughters to respondent,*fn1 the natural father.

The parties met in 1963 and respondent began residing with petitioner and her children soon thereafter. The parties never married. On July 21, 1973, petitioner gave birth to twin daughters. Respondent moved out of petitioner's home in March of 1974 and married Barbara Jean Dubois on April 11, 1974.

On April 14, 1974, respondent came to petitioner's apartment and, representing that he wanted to show the babies to friends, took the twins away. Although he stated that he would bring them home that evening, he never returned.

Petitioner, having failed to regain the children or contact respondent, filed a petition for habeas corpus on June 4, 1974. The trial court which initially heard the cause denied the petition and awarded temporary custody to respondent. That order was subsequently vacated and a new trial was granted. Prior to trial respondent filed a petition for adjudication of wardship in which he sought to have the children declared wards of the court and placed in his custody.

Since the facts adduced at trial were well stated in the trial court's memorandum opinion and are not now in dispute, we quote from it extensively:

"* * * The evidence reveals that both parents are fit to have custody, but that the natural father is married and can provide a more stable family life with more material advantages to the minor children than the mother can. However, the evidence also shows that the mother had physical custody of the children from birth until the time they were about nine months of age at which time the natural father obtained physical custody of the children by deceiving the mother. The children are now about twenty-one months of age.

"EDMUND DUBOIS is and for some time has been employed by Schenkers International Forwarders, Inc. as a driver-salesman. He testified that he is 53 and in good health. When he began living with petitioner in 1963 a divorce action was pending to dissolve his marriage of 14 years to one Gladys Branch Terrell. There were no children of that union. His present wife BARBARA DUBOIS appeared as a witness at the hearing and testified that she was educated in the Chicago Public Schools and had received college training in several local schools including Moody Bible Institute. She further testified that she has been mothering the twins since they were nine months old; that she and DUBOIS want to keep them; and that she would give their care priority over her pastoral duties. DUBOIS, his wife and the twin girls live in a two apartment building at 834 East 88th Street in Chicago.

"Petitioner BARBARA IRBY lives in the Chicago Housing Authority Project at 220 East 63rd Street with four of her five children by her marriage to John H. Irby from whom she has been divorced since 1967. The ages of the four children range from 12 to 17. The fifth child, Belinda age 20, is married and out of the household. MRS. IRBY has not remarried. She is not employed. She receives public assistance. During the latter part of 1971 and the first six months of 1972 she was in a tuberculosis sanitarium. She testified that today the T.B. is inactive and her condition stable. She has no contact with the Sanitarium but goes to the Clinic at the Englewood Health Center every six months.

"This court ordered the probation department to make a social investigation that would include an assessment of the life patterns and the homes of the parties. Pursuant to this order an investigation was made by Probation Officer Birchette who testified at the hearing and submitted a written report which was received into evidence. The report states

`* * * that the best plan for the twins at this time would be to remain with their natural father who along with his wife and mother are providing adequate care and nurturing for the babies. However, it is felt that the mother should be granted visiting rights.'

On the basis of all the facts and circumstances established by the evidence, this court finds that the interests of the twins would best be served by not disturbing the custody of the natural father. An order will issue denying the petition for Adjudication of Wardship, denying the petition for habeas corpus, fixing BARBARA IRBY'S rights of visitation and assessing costs."

On appeal petitioner contends that (1) respondent's conduct in taking the children from her prejudicially altered her position before the trial court, (2) the judgment was against the manifest weight of the evidence and (3) the trial court improperly considered ...


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