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People Ex Rel. Rathbun v. Rathbun





APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.


This appeal involves a change of child custody case. The case was initiated by James G. Rathbun, the father of the two children sought, on a petition for a writ of habeas corpus in the Circuit Court of Champaign County. This petition sought the modification of a Colorado decree of divorce which granted custody to Patricia A. Rathbun, the children's mother and one of the respondents. The other respondent was Abdul Jamal, her boyfriend. After hearing evidence, the trial court found for the petitioner and ordered that custody of the parties' minor children, James Russton (Rusty) and Alisha Christine, be granted to the petitioner. The respondent, Patricia A. Rathbun, appealed from this order.

The Rathbuns separated in late 1972 and obtained their uncontested divorce in July 1973. Immediately prior to the divorce, the respondent and the children moved to Urbana, Illinois, to reside with the petitioner's parents. The respondent was recovering from major surgery which she had in early June 1973, involving a tubular pregnancy, a tubular ligation and an appendectomy. Although the respondent had applied for welfare while in Colorado, she was working for her father-in-law at the time of the divorce. The wages she received were reduced in return for her in-laws allowing her and the children to reside with them.

In September of 1973, the respondent and her children moved to Champaign, Illinois, to reside with her ex-father-in-law's sister, Mildred Rathbun. And in November, they moved to a residence in Urbana; the respondent worked at Jones Optical in Champaign and utilized Mildred as a babysitter for the children. Furthermore, using Mildred's address, the respondent was able to have Rusty attend the Bottenfield School.

On Christmas Day, 1973, the respondent met Abdul Jamal at a Christmas Dinner given in the home of Mildred Rathbun. Jamal was a child welfare worker with the Department of Children and Family Services for the State of Illinois and had both a social and professional relationship with Mildred Rathbun. After their meeting, Jamal and the respondent began seeing one another regularly. During the months of February, March, and April of 1974, Jamal used her car regularly in his work. He would pick up the respondent and her children in the morning at their apartment and take the mother to work and the children to the babysitter. He would then pick them up in the evening and return them home. They would eat supper together regularly during this period of time and occasionally would have lunch. Jamal often would take the children to the park or to the University of Illinois. He stayed overnight at the respondent's apartment from two to five occasions, and on at least two occasions the children were present. In addition, Pat Rathbun and Jamal would go shopping together and plan meals, purchase clothes and shoes for the children, occasionally do the wash and household cleaning together, along with discussing and putting into operation discipline for the children. Jamal testified that he reimbursed the respondent at the rate of $10-12 per week for the groceries he ate in her home during the period May to September 1974, but he also testified that in September 1974 he had not paid the respondent anything for groceries during the previous three months. Jamal further testified that in the three months previous to September 1974, he had paid $50 to $60 on the respondent's doctor bills. At Jamal's suggestion, the respondent and her children began attending church at the Church of Christ. She accepted the teachings of the church, became a member, and attended every Sunday and Wednesday nights during the week, along with Jamal and the children.

In July of 1974, the petitioner remarried. He and his wife presently reside in Harvard, Illinois.

Rusty Rathbun, the minor son of the parties, has a congenital birth defect, a deformed right foot and shortened right leg. While the parties were still married and in Colorado, he had received treatment and surgery on the foot beginning in January 1966, and continuing through sometime in September 1972. The later treatment consisted solely of examinations and some X rays at a clinic for crippled children held every three months in Colorado. These examinations were conducted by Dr. James Johnson. From January 1966 to January 1972 the leg length difference between the left and right leg of the boy was approximately one-quarter inch. No measurements of the leg length difference were again taken until October 1974, when the leg length difference was measured to be 1 3/4 inches. Because of the birth defect, the boy's right foot turned inward. Since the September 1972 visit to the doctor and up until the time of the divorce decree in July 1973, the boy had not been taken to any doctor for attention for this deformity, nor to any crippled children clinic. After the parties had separated, the respondent had complained that she had no means of transportation and the petitioner made his car available to her, but nevertheless the boy did not see a doctor again in Colorado prior to the entry of the divorce decree.

After the parties were divorced in July 1973, and the mother and children had come to Illinois, the minor son of the parties was still not thereafter taken to see a doctor. The respondent and Jamal had discussions about the boy's condition and Jamal obtained papers or forms from the Crippled Childrens Association at the University of Illinois, whose office was in the same building where the Department of Children and Family Services was located. The Crippled Childrens Association was contacted in late June or early July 1974, and an appointment made, and a caseworker assigned, concerning Rusty Rathbun.

While the parties were still in Colorado, the doctor had directed that lifts be placed in the right shoe of the boy to correct the inward turning of his foot. This was never repeated in subsequent purchases of shoes, either in Colorado or in Illinois. Rusty Rathbun wore a different size shoe on his left foot than his right foot because the deformed foot was smaller. He would wear shoes out quickly, requiring new shoes approximately every three months. Although he limped because of the leg length difference, this did not interfere with his normal activities at play with friends, nor did it seem to affect the mental attitude of Rusty although on occasion he would complain or use it as an excuse.

Julia Johnson, Rusty's teacher the previous year at Bottenfield School, testified that the boy was normal in all respects of his education in that he was not habitually truant, and had a good attendance record, he was not exceptionally tardy, he was not aggressive or disruptive, nor was he overly shy or withdrawn. She described his learning ability as within the average range. Late in the school year she discovered that he had a deformed foot when he pointed it out to her. During recess or other contact with children, the foot did not handicap him.

In May 1974, Pat Rathbun had surgery in Champaign for gallstones. She was off work from Jones Optical for approximately eight weeks and received sick pay during that time. After her recuperation, however, she did not return to work at Jones Optical. She was unemployed for a short period of time until she became employed at a K-Mart department store. After her surgery, she also ceased taking the children to Mildred Rathbun. On August 18, 1974, she moved to 1604 South Vine, Urbana, and thereafter she obtained a new babysitter who was a neighbor.

On August 17, 1974, the petitioner and his wife were returning the children after visitation. When they arrived at the Illini Union, University of Illinois campus, they discovered that the respondent had the car fully packed and Jamal was with her. When some mention was made of going to Arkansas, the petitioner refused to return the children and took them back to Harvard, Illinois, with him. On August 21, 1974, the petitioner filed his petition for a writ of habeas corpus. In addition to a motion to dismiss, the respondent filed a cross petition for habeas corpus, seeking to regain custody of the minor children of the parties pursuant to the Colorado divorce decree. Custody was temporarily returned to the respondent at a hearing held August 27, 1974.

On the next hearing date, October 21, 1974, Dr. James A. Johnson testified concerning his contacts, examination and treatment of Rusty. Dr. Johnson testified that the boy's deformity was a major deformity which, due to the circumstances, including particularly the congenital shortening of the right leg, would require continuous observation and treatment as it could be expected that the leg-length discrepancy could increase and the deformity of the foot could also increase or change in spite of existing treatment, and that in such congenital deformities there must be continual observation in order to apply other modes of treatment that might be necessary. Dr. Johnson stated that he advised Patricia Rathbun of the necessity of such continuous observation and treatment of Rusty's leg and foot in the period from 1966 to September 1972. In the period 1966 to September 1972, Dr. Johnson did in fact at regular intervals observe and treat Rusty in Colorado. With respect to the deformity, Dr. Johnson testified that in 1966 the deformed right foot turned in significantly and the right leg was one-quarter of an inch shorter than his left leg. In January of 1972, the latest X rays which he took of Rusty revealed the growth line in the right leg open but being pretty close to being closed and that at that time he didn't notice any increase in the shortening of the right leg as compared to the left.

In his treatment of Rusty's foot in Colorado, Dr. Johnson testified he originally placed casts on the right foot to correct the turning in and then ordered some corrective shoes to be used with a lift and hard, firm counter to the shoe to maintain or help maintain the correction. He ...

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