APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
E. PETERSON, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
In this appeal we must determine the validity of a trial court order granting joint and mutual custody of three minor children to their natural mother and their stepmother, but also granting actual physical custody to the stepmother alone, with visitation rights to the natural mother. Both mothers were held by the trial court to be fit parents, and on appeal, the natural mother contends that without a finding of her unfitness she had a right as a matter of law to custody.
We affirm the trial court's decision.
The defendant-appellant, Patricia Ann Cebrzynski (Patricia), married the plaintiff, Stephen W. Cebrzynski (Stephen), in August 1965. They had three children, Michael, born August 18, 1966, Andrew *fn1, born July 31, 1968, and Paul, born November 15, 1970. On February 23, 1973, Patricia and Stephen were divorced, with the decree incorporating their agreement that Stephen be awarded custody of the three minor children, subject to review in one year. On April 14, 1973, Stephen married Mary Ann Cebrzynski (Mary Ann), the intervening petitioner. Stephen died November 5, 1975. On December 5, 1975, Patricia filed a post-decree petition seeking custody of the children. The court first entered an order on that date granting custody to her, but then vacated the order the same day, finding that no hearing had been held, and set the cause for a hearing on December 8, 1975. On December 8 an order was entered permitting Michael and Paul to continue to reside with Mary Ann from 5 p.m. Sunday to 5 p.m. Friday and with Patricia the remainder of the week. Subsequently Mary Ann petitioned for custody of the children and was granted leave to intervene in the cause. Following evidentiary hearings on the matter the trial judge granted joint and mutual custody to Mary Ann and Patricia, with actual physical custody to Mary Ann and visitation rights to Patricia. This appeal followed.
No significant factual disputes arose from the testimony, which we summarize in pertinent part. Patricia, 32 at the time of her testimony, was employed in a training position with the Will County Health Department at an annual salary of $10,000. She received a bachelor's degree in education from Northern Illinois University and was four hours short of a master's degree from Governor's State University. Until September 1972 Patricia lived with her husband and children in an apartment in Park Forest, Illinois. She moved out of the marital residence that month into an apartment a few blocks away. In January 1971 Patricia met Mary Ann, who had known her husband since the previous September when she met him at the high school at which they both taught. Mary Ann agreed to baby-sit for Patricia's children for about a week that month while Patricia underwent an operation. After Patricia moved out of the marital home the children remained with Stephen, but they came to her apartment after school until bedtime every weekday and were there much of the weekends. Following the divorce she had visitation rights with the children on weekends. She did not seek to modify the custody decree at that time because she was working nights and was single. When Stephen remarried, she began to see the children on alternate Saturdays and Sundays. Once a month they would customarily stay overnight with her. After Stephen's death she had the children every weekend from 5 p.m. Friday to 5 p.m. Sunday. Patricia planned to marry a police officer in November 1976. (In her petition for rehearing before the trial court she stated that she did marry then.) She testified to her belief that on their combined incomes she would be able to support her three children if she received custody of them. She had recently purchased a single-family home. Patricia conceded that Michael had been very disturbed about living permanently with her.
Mary Ann testified that she worked as a teacher in a high school at a salary of about $17,300 a year including payment for teaching summer school. She had a seven-year-old daughter from a previous marriage which ended in divorce. She met Stephen in September 1970 when she began teaching at the high school where he taught and first became "romantically involved" with him about two years before his divorce from Patricia in February 1973. When Patricia moved out in 1972 Mary Ann began to participate in the care of the children on a regular basis. Stephen would bring Paul over to Mary Ann's apartment in the morning. She would feed Paul breakfast, bathe him, and take him to the same babysitter she used for her daughter. After she was through teaching school she would take Paul to Patricia's apartment for the evening. Before Patricia moved out, in the period between January 1971 (when Mary Ann babysat for the children evenings from 5 to 10 for about a week), and September 1972, Mary Ann only visited Stephen's home a few times. But Michael was in her apartment at least once a week when Stephen brought him over, and often Paul would come too. The children did not spend the night on those occasions. Mary Ann moved into the apartment formerly occupied by Stephen and Patricia when she married Stephen. In October 1973 they moved to a home in Crete, Illinois, and in July 1976 they moved to a home in Orland Park, Illinois. Michael and Paul each had his own room in that home. Mary Ann also testified that as the widow of Stephen she was entitled to receive payments under a pension plan. She could elect to receive a lump sum of about $15,000 or, if Stephen's children were living with her, she could receive $500 a month until Michael turned 18, and then $260 a month until Paul turned 18. Acceptance of the lump sum would waive any further claim on her part.
Patricia's father and two of her friends, including her fiance's sister, all testified that they had observed her with her children and knew her to be a very fit mother who cared for her home and children properly. All expressed their opinion that Patricia should have custody.
Stephen's parents, his sister and her husband, and a friend of Mary Ann's, Arleen Morgenti, all testified that they had observed Mary Ann with the children. She cared for them well, was a fit mother, and should get custody.
David Nilsson, a case worker with the Department of Supportive Services, visited Mary Ann and Patricia in their homes and also talked with Michael. He found both women to be good housekeepers and found them both to have a very stable physical environment. Nilsson's recommendation was that the children remain with Mary Ann, though his reasons for that were not elicited because of objections from counsel.
Arthur Berman, the guardian ad litem for the children, interviewed Michael, Paul, and both mothers as well as some of their friends and relatives. He explicitly refrained from relating what preferences, if any, the two boys had with respect to custody. Berman indicated that he felt neither woman was unfit to care for the children. He found that Patricia was an intelligent woman, very concerned with her children, who honestly believed she would be best for them. He found that Mary Ann was concerned with the best interests of her children, not what was best for herself; he believed her to have a close relationship with the children. It was his opinion that the children would be better off with Mary Ann:
"* * * for many reasons, and part of them are psychological from reports that I have read and so forth, I feel that the children would be better off with Mary Ann. I feel she is able to devote more time to them and respond to them now, to their best interests, better than Patricia is at this time. But I don't want the Court to feel in any way that I am castigating Patricia for any remember, she hasn't had the children since the divorce, and it's much more difficult to relate the children [sic] when they come to visit you each week than it is when you have them there every day. In all fairness to her, I have to say that this does go into the basis of my opinion."
Dr. Walter Feldman, an attorney and a psychiatrist, interviewed Mary Ann, Michael, and Paul. He sought an interview with Patricia but she refused on the advice of counsel, according to her testimony. Tests on Michael and Paul were run under Feldman's supervision and observation. He concluded that Paul was suffering from depression caused by his father's death and by the potential disruption of his home environment flowing from the custody dispute. In a written report which was also submitted to the court (the report was prepared for counsel for Mary Ann) Feldman stated that another separation would constitute a danger to Paul's future emotional health. In that report he stated that Michael, who had a superior IQ, had remarkable potential, and had an excellent relationship with Mary Ann. But if there was "further trauma," he could withdraw even more than he had. Michael told Feldman that if custody were changed, he would return as soon as he obtained the legal right. In his trial testimony Feldman expressed the opinion that it would be in the best interests of the boys that they remain with Mary Ann. He also concluded that a change of physical custody would be potentially very dangerous and hazardous, even if both mothers were equally fit.
In reaching his decision, the trial judge made the following comments:
"Ladies and gentlemen, this has been a terrible decision, but we had to do it and we have done it and done what we think is right. In reading the cases and deciding this case, I had to think of what is the best interests of the children. I have concluded that I think the best interests of the children will lie in Mary Ann Cebrzynski. She is going to have custody no, it's going to be joint and mutual custody, but they are going to live with Mary Ann Cebrzynski. She is going to be the live-in custodial parent, but we are going to give Patricia, whom we did not find unfit, whom we found nothing ...