APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
E. TRAFELET, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This appeal involves a dispute over custody of two children, one born on December 31, 1969, and the other on May 24, 1971. The contestants are the mother (Karen) and the paternal grandparents (the Eatons). The father of the children, Thomas Eaton, and Karen were married in March 1969; their marriage was dissolved in May 1974, under the Florida "No Fault" statute. At the time of the dissolution, Karen gave custody of the children to their father.
Shortly after the dissolution, the father and his two children moved to Illinois; they resided with the Eatons in their home in Wheeling, Illinois, until May 1975, when they moved to their own apartment. On July 16, 1975, the father was accidentally killed.
When their son died, the Eatons took the grandchildren to their home. Karen learned of her former husband's death shortly after it occurred, and she immediately traveled from Florida to Wheeling, planning to take her children back to Florida to live with her. The Eatons refused to permit her to have the children or to see them. The stage for this proceeding was set by a petition for writ of habeas corpus Karen filed on July 22, 1975, against the Eatons for physical custody of the children. On the same day, Earl Eaton, the paternal grandfather, filed a petition to be appointed guardian of the childrens' estates and persons. Nine days later, Karen's mother, Hope Burke, who also lives in Wheeling, filed a petition to be appointed guardian of the estates. The three petitions were consolidated for trial in the probate division of the circuit court. The circuit court denied the petitions of Karen and her mother, and granted the Eatons' petition. The court also granted visitation rights to Karen limited to Cook County, Illinois.
Witnesses included psychiatrists, psychologists, attorneys and Karen's neighbors in Florida, as well as Wheeling neighbors of the Eatons. Four witnesses a marriage counselor who was advising Karen prior to her divorce, the attorney who represented Karen's former husband in obtaining the divorce, and two of Karen's former Florida neighbors were brought from Florida at the Eatons' expense and testified on their behalf. Although the testimony was lengthy, the conflict and inconsistencies which it developed were minor.
Karen married at the age of 17; her husband was 8 years her senior. During their marriage, Thomas was in the U.S. Navy, and he and Karen frequently moved from base to base. Thomas was often away at sea for intervals of 6 days to 6 months. In 1973, Thomas was under the care of a psychiatrist, and Karen was experiencing difficulty coping with her children and her husband's absences. She consulted a marriage counselor and psychologist from April to October 1973. Karen left the marital home in Jacksonville, Florida in February 1974, entrusting the children to the care of her husband.
Jeanne Eaton, the paternal grandmother, arrived at her son's home in Florida on February 17, 1974, shortly after Karen left. Mrs. Eaton found the children's bedroom in what she characterized as a deplorable condition, with a pervasive odor of urine, a missing window screen, no curtains and no protective covers on the electrical sockets. Jeanne Eaton's daughter-in-law, Barbara, arrived at the home in Florida about 5 days after Mrs. Eaton's arrival while her mother-in-law was still there. She found the conditions observed by Mrs. Eaton when she arrived only partially corrected; she testified that molding from around the ceiling and the baseboard from the children's room was lying in the hallway with nails exposed and that there was writing on the hallway walls. The evidence is inconclusive as to the extent that Karen was responsible for these conditions.
Mrs. Lilly, Karen's next-door neighbor in Jacksonville, testified that Karen locked her children in their rooms. This was done during their naps or to punish them or to keep them from running around the house while Karen was napping. Mrs. Lilly stated that Karen punished the children frequently and that she often heard the children screaming. She assumed Karen was spanking her children, but never saw them being spanked. On one occasion, Karen chained her younger child to a carport by attaching a dog chain to a strap she put around the child's body. Mrs. Lilly was not asked whether Karen kept her home clean.
Karen explained why she acquiesced in her husband having custody of her children at the time her marriage was dissolved by her testimony that she was unhappy and confused when she left her husband and children, and needed time to "get herself together." She also testified she felt her children would be better off with her. She stated, however, that her husband suffered from depression and she feared that if she took the children away from him, it would be such a blow to him that he might commit suicide. She testified that during this period her husband told his mother he had a bottle of pills and wanted to take them.
During the last few months Karen resided in the marital home, she was seeing another man who visited her frequently in her home while her husband was away. When Karen left in February 1974, she moved to an apartment that this man maintained, and shared it with him for a time. After the dissolution of her marriage, Karen lived as a single woman and had male friends. Over the objection of her attorney, she was required to testify about these relationships.
For most of the time after her marriage was dissolved, Karen was employed. For part of the time she worked as a daytime bartender in a lounge featuring topless dancers, and occasionally she worked at the door of that lounge at night. She also worked in another lounge as a bartender and relief cocktail waitress, and was employed as a salesclerk in a fabric store.
After her marriage was dissolved, Karen moved from Jacksonville, Florida to Miami. She kept a loaded gun in her Miami apartment, explaining it was for self-protection because there had been a large number of robberies in the area. A neighbor in Miami testified that Karen smoked marijuana on occasion in her apartment, but she denied this.
Mrs. Eaton took the children back to Wheeling in February 1974, and returned to Jacksonville with the children in May 1974 when the marriage was dissolved. Karen visited with her children for 1 day, and Mrs. Eaton then flew back to Wheeling with the children, who never again returned 1974 visit with them until the latter part of 1974 was two letters she wrote. She testified that it was her understanding at the time of the marriage dissolution that her husband would remain in Florida with the children.
Karen returned to Jacksonville from Miami in August 1974, and attempted to contact her former husband and children. She learned that their former home had been sold and that her husband and children no longer were living there. She wrote to her former husband in December 1974 inquiring about the children, and advising him she would call long distance to speak with her children. She called on Christmas Eve, 1974, but Mrs. Eaton, after berating Karen, hung up the phone without letting Karen speak with the children. Karen then consulted her attorney, who contacted her former husband's attorney. A few days later Karen made a second call, and was allowed to speak with her children. Karen sent her mother a check to use for purchasing Christmas presents for the children. Karen testified she tried to make monthly long distance calls to her children in 1975, and perhaps sent two letters to them. She flew to Wheeling in March 1975 to visit with her children. However, ...